CONSTITUTIONAL LAW·
Thomas E. Bakert
JUSTICIABILITY
Any discussion of developments in constitutional law must begin with the threshold "principle of first importance":l the article
III limits on federal courts to consider and decide "cases and controversies."2 The constitutional limits on the role of the federal judiciary are three-dimensional. First, the judicial review power of
the federal judiciary courts qua courts is limited to a consideration
of "questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process."3 Second, the power of judicial review of the federal courts is
also defined by '~the role assigned to t~e judiciary in a tripartite
allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government."·
Third, the federal power of judicial review is restrained by the dynamics of the federal system itself and is self-restrained when the
court declines to proceed or abstains though it has jurisdiction
under the Constitution and the enabling statutes. II The power of
judicial review of the federal courts is thus circumscribed along
three axes: judicial tradition, separation of powers and federalism.
During the survey period, the court charted its way along these
• The author thanks Ms. Judy L. Coleman, J.D. 1981, Texas Tech University School of
Law, for her research assistance.
t An Assistant Professor of Law at Texas Tech University School of Law, the author
obtained the B.S., cum laude, from Florida State University in 1974, and the J.D., with high
honors, from the University of Florida, Holland Law Center in 1977. From 1977 to 1979 Mr.
Baker served as a law clerk to the Honorable James C. Hill of the United States Court of
Appeals for the Fifth Circuit.
1. C. WRIGHT, LAW OF FEDERAL· COURTS 17 (3d ed. 1976). See generally P. BATOR, D.
SHAPIRO, P. MISHKIND, H. WECHSLER, HART & WECHSLER'S THE FEDERAL COURTS AND THE
FEDERAL SYSTEM 1·243 (2d ed. 1973).
2. U.S. CONST. art. III, § 2, cl. 1. See generally Aetna Life Ins. Co. v. Haworth, 300
U.S. 227 (1937).
3. Flast v. Cohen, 392 U.S. 83, 94·95 (1968). See text accompanying notes 7·63 infra.
4. [d. See text accompanying notes 64·80 infra.
5. See generally WRIGHT, supra note 1, at 218·36. See text accompanying notes 81·137
infra.
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three contours of justiciability.s
Standing and Mootness
As a court qua court, the federal court must consider the
threshold concerns of standing and mootness. "Standing" is the
analytical facet of the justiciability doctrine which measures
whether "a party has a sufficient stake in an otherwise justiciable
controversy to obtain judicial resolution of that controversy."7 The
inquiry is focused on the individual, "on the party seeking to get
his complaint before a federal court and not on the issues he
wishes to have adjudicated."s Conceding the correctness of Mr.
Justice Douglas's caveat that "[g]eneralizations about standing to
sue are largely worthless as such,"9 the Supreme Court has nevertheless divided standing into two basic inquiries. First, the court
must determine "whether· the plaintiff alleges that the challenged
action has caused him injury in fact, economic or otherwise. "10 Second, the court must determine "whether the interest sought to be
protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional
guarantee in question."ll
The personal standing cases d.ecided during the survey period
centered on the first principle of standing, the requirement of an
injury in fact. The court concluded that the requisite injury in fact
was present in two of three cases. In the first case parents and
black children who had been among the original plaintiffs in a ten
year old desegregation suit,12 and who had filed a motion to obtain
additional relief deemed necessary to accomplish the previously ordered 13 dismantling of racial discrimination, had standing. a, These
plaintiffs possessed "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends
6.
7.
8.
9.
(1970).
10.
11.
12.
13.
14.
its. [d.
See L. TRIBE, AMERICAN CONSTITUTIONAL LAW 52-56 (1978).
Sierra Club v. Morton, 405 U.S. 727, 731 (1972).
Flast v. Cohen, 392 U.S. 83, 99 (1968) (emphasis added).
Association of Data Processing Service Orgs., Inc. v. Camp, 397 U.S. 150, 151
[d. at 152.
[d. at 153.
See Tasby v. Estes, 342 F. Supp. 945 (N.D. Tex. 1971).
See Tasby v. Estes, 412 F. Supp. 1192 (N.D. Tex. 1976).
Tasby v. Estes, 643 F.2d 1103, 1105 (5th Cir. 1981). The plaintiffs lost on the mer-
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for illumination of difficult constitutional questions."I!! More sig'nificantly, the plaintiffs would not be required to reestablish their
standing each time they sought stich additional relief. 16 In the second case a husband had standing to seek federal declaratory and
injunctive relief challenging a requirement of state community
property law despite a subsequent legislative change which had the
effect of abrogating the challenged rule. 17 While" '[a] hypothetical
threat is not enough,' "18 a challenger to a state practice need only
establish "a realistic danger of sustaining a direct injury from its
application."19 The dispute was justiciable for the husband once he
demonstrated that application of the abrogated common . law rule
was "not an unrealistic possibility" due to the uncertain scope of
the abrogating statute enacted during the pendency of the divorce
proceedings. 20 A third plaintiff, a former police officer, did not have
personal standing to challenge department regulations which were
not asserted as a basis for his own discharge. 21 Since he had suffered no injury in fact from the· challenged ·regulation which had
not been applied to him, the former police officer's standing was
not established by the mere existence of the regulations. 22 Thus; in
the personal standing cases the court seized on the injury in fact
concept to assure requisite adverseness and personal interest which
are central to a traditional judicial resolution.
The general rule of representative standing is that "one to
whom application of a statute is constitutional will not be heard to
attack the statute on the ground that impliedly it might be taken
as applying to other persons or other situations in which -its appli·cation might be unconstitutional."23 The nearly-swallowing exceptions to this rule often allow a third party standing to raise others'
rights based on the factual significance of the relationship between
the third party representative and those represented, the ability of
15.
16.
[d. (quoting Baker v. Carr, 369 U.S. 186, 204 (1962».
[d. at 1105-06.
17. Ziegler v. Ziegler, 632 F.2d 535 (5th Cir. 1980) . .
[d. at 538 (quoting United Public Workers v. Mitchell, 330 U.S. 75, 90 (1947».
19. Ziegler v. Ziegler, 632 F.2d 535, 538 (5th Cir. 1980).
20. [d. The plaintiff was denied immediate relief through application of the abstention
.
doctrine. See text accompanying notes 110-137 infra.
21. Smith v. Price, 616 F.2d 1371, 1379-80 (5th Cir. 1980). The plaintiff lost on the
merits of his wrongful discharge suit once the court concluded that he was constitutionally
fired based on his involvement in gun play, his neglect of duties and failure to report the
theft of his gun. [d.
22. [d.
23. United States v. Raines, 362 U.S. 17, 21 (1960).
18.
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the third party representative to provide the adverseness necessary
for judicial resolution, and the likelihood that the rights of those
not before the court will otherwise be lost. 24 During the survey period the court handed down a significant decision for the law of
representative standing..
In Church of Scientology v. Cazares,25 the plaintiff Church
sued the Mayor of Clearwater, Florida, under the Civil Rights
Act,26 alleging that he had, under color of state law, deprived the
Church of its civil rights by interfering with its right to free exercise of religion. 27 When it was announced that the plaintiff Church
would be using a certain hotel as a training facility, the defendant
Mayor became an outspoken critic of the Church. Plaintiff Church
claimed interference with its free exercise right by the defendant
Mayor's pattern of conduct which allegedly included making false
and defamatory remarks which poisoned community sentiment, inducing other community clergy to shun the Church, inducing municipal and state officials to harass the Church, inducing civil orga~
nizations and community leaders to shun the Church, and inducing
the local media to publish only inaccurate and adverse information
about the Church. 28 On appeal the Fifth Circuit reversed the district court and held that the plaintiff had standing to protect the
civil rights of its members.29
The district court had reasoned that there were no rights involved which could not be asserted by an individual member of the
Church and no unusual circumstances were alleged which necessitated representative standing. so The Fifth Circuit concluded this
24. See Note, Standing to Assert Constitutional Jus Tertii, 88 HARV. L. REV. 423, 441
(1974). See also generally Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 YALE L.J. 599 (1962).
25. 638 F.2d 1272 (5th Cir. 1981).
26. 42 U.S.C. § 1983 (Supp. III 1979).
27. U.S. CONST. amend. I provides in part: "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof." More accurately, the alleged violation was of the fourteenth amendment insofar all due process incorporates the
free exercise clause. See Cantwell v. Connecticut, 310 U.S. 296 (1940). A second count of the
complaint sounded in common law defamation and was grounded on diversity of citizenship.
638 F.2d at 1275 n.2.
28. 638 F.2d at 1276.
29. [d. at 1278-80. Because the court held that the plaintiff Church had representative
standing on behalf of its adherents, the issue of whether it could assert a corporate right to
free exercise was reserved. [d. at 1280-81 n.7. The same issue was left unresolved by the en
bane court in Brown v. Dade Christian Schools, Inc., 556 F.2d 310, 313 (5th Cir. 1977) (en
bane).
30. 638 F.2d at 1276. The district court also concluded that' the Civil Rights Act did
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.was an unduly narrow approach to representative standing. First,
Supreme Court precedents made clear that there is no requirement
of "unusual circumstances" for a corporation to sue to protect the
rights of its members, once it is recognized that the Qrganization
and its members are identic and the organization itself likely will
be adversely affected by the challenged action. SI Second, the fact
that there were no rights which could not be asserted by individual
members of the Church was deemed irrelevant so long as the
Church met the standing criteria. S2 Third, consistent with prior
Fifth Circuit precedent, it was not necessary that the complaint
specifically state that the Church sought to represent its members,
for it was obvious that such was the plaintiff Church's role. ss For
an association to be allowed representative standing three elements
must be satisfied: (1) the members themselves would have personal
standing to sue; (2) the interests sought to be protected are germane to the very reason for the organization's existence; and (3)
neither the claim the organization asserts nor the relief requested
necessitates participation by individual members.s. Only the third
element seemed to trouble the court. Recognizing that "a free exercise claim is 'one that ordinarily requires individual participation,' "SII the court concluded that the third requirement was satisfied because the challenged activity affected the entire membership
of the plaintiff Church in exactly the same way, and the Church
was itself inhibited in its collective free exercise, including use of
its property. S8
not protect a corporation's free exercise right. Id.
31. Id. at 1278. In 1958 the Supreme Court concluded that the NAACP had standing
to resist exposure of the NAACP's state memoership lists. NAACP v. Alabama ex rei. Patterson, 357 U.S. 449 (1958).
32. 638 F.2d at 1277 (citing Hunt v. Washington Apple Advertising Comm'n, 432 U.S.
333, 342 (1977)).
33. 638 F.2d at 1277-78. See also CORE v. Douglas, 318 F.2d 95, 102 (5th Cir. 1963).
34. 638 F.2d at 1279.
35. Id. at 1280 (quoting Harris v. McRae, 448 U.S. 297, 321 (1980)).
36. 638 F.2d at 1280. The court thus distinguished Harris v. McRae, 448 U.S. 297
(1980). The court emphasized that in Harris only an undetermined percentage of the organization's membership had a personal stake in the controversy. This seems to confuse the
first requirement that members have personal standing with the third requirement that
neither the claim nor the relief requested requires participation of individual members. The
Supreme Court rejected representative standing in Harris because "participation of individual members ... [was) essential to a proper understanding and resolution of their free
exercise claims." Id. at 321. In the instant case the court seemed to assert the plaintiff
Church's own free exercise claim as a reason for allowing representative standing yet pointedly declined to decide the general issue of institutional rights. 638 F.2d at 1280-81 n.7. See
note 29 supra.
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Other standing decisions during the sllrvey period further defined the scope of representational standing by making marked
distinctions between personal and representative standing. 37
In O'Hair u. Hill,38 famous atheist Madalyn Murray O'Hair39
and the Society of Separationists, Inc., aimed a complex series of
constitutional attacks at a provision of the Texas Constitution
which guaranteed that no office holder would be excluded because
of religious sentiments, as long as the officer acknowledged a personal theism. 40 Neither O'Hair individually nor the Society representatively alleged any kind of injury. A mere allegation that the
provision was in violation of the establishment clause of the first
amendment was deemed simply "inadequate."41 The court opined
that both O'Hair personally and the Society representatively had
standing to challenge the same provision under the equal protection clause of the fourteenth amendment, because O'Hair had in
fact been excluded and members of the Society would be subject to
future exclusion from jury service":' Neither O'Hair nor the Society had standing to enjoin the payment of salaries or the holding
of further elections until the state constitutional provision was
ruled unconstitutional. The charge that plaintiffs could be barred
37. Three other decisions merit brief mention. Phillips v. Joint Leg. Comm., 637 F.2d
1014, 1026 n.20 (5th Cir. 19S1) (class representatives who themselves had college degrees
lacked standing to challenge an employer's educational r4!quirement of a college degree);
Johns v. Department of Justice, 624 F.2d 522, 524 (5th Cir. 19S0) (neither couple with physical custody of child who allegedly was kidnapped nor natural mother sufficiently represented child's interest to have standing); Appling County v. Municipal Elec. Authority, 621
F.2d 1301, 1307 (5th Cir.), cert. denied, 449 U.S. 1015 (19S0) (neither county nor its individual citizens and taxpayers had standing to represent unspecified good faith purchasers of
county bonds).
3S. 641 F.2d 307 (5th Cir. 19S1).
39. Ms. O'Hair first reached national prominence as a successful petitioner in the companion case to School District v. Schemp, 374 U.S. 203 (1963), which held public school
programs of voluntary Bible reading violated the establishment clause.
40. TEx. CONST. art. 1, § 4 provides: "No religious test shall ever be required as a
qualification to any office, or public trust, in this State; nor shall anyone be excluded from
holding office on account of his religious sentiments, provided he acknowledge the existence
of a Supreme Being."
41. 641 F.2d at 310.
42. [d. "People excluded from juries because of [unconstitutional reasons] are as much
aggrieved as those indicted and tried under [such] a system . . . . Once the State chooses to
provide . . . juries ... it must hew to ... constitutional criteria in ... the selection of
membership .... " Carter v. Jury Comm'n, 396 U.S. 320, 3,29-30 (1970) (footnotes omitted).
See also Ciudadanos Unidos De San Juan v. Hidalgo County Grand Jury Comm'rs, 622 F.2d
S07, S15 (5th Cir. 19S0). O'Hair and the Society had standing to seek an injunction against
any further seating of juries due to the unconstitutional refusal to allow them and other
atheists to serve. The court, however, deemed abstention proper. 641 F.2d at 312-13.
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from, or denied compensation for, public office was deemed entirely too speculative absent some allegation of a desire or plan to
seek such office. 43 And since the Society would not itself suffer any
injury in fact in regard to civil and criminal proceedings pending
against O'Hair, there was simply no basis for allowing the Society
represenative standing. 44
A second decision involving the doctrinal distinction between
personal standing and representative standing included another famous personality. In Federal Election Commission v. Lance,4r>
Lance resisted an administrative subpoena to appear and produce
documents through a constitutional assault on the Federal Corrupt
Practices Act.48 Lance attacked the entire Act as facially overbroad
and invoked the principle that an administative subpoena will be
judicially enforced only incident to " 'a lawfully authorized purpose, within the power of Congress to command.' "47 If the Act is
facially unconstitutional, Congress could not authorize its enforcement by the agency.48 Treating the Act as severable, the en banc
court concluded that 'Lance only had standing to challenge that
part of the Act which may have been violated. 49 The en banc court
dispatched Lance's argument that his injury in fact under the particular portion qualified him to mount an attack on the entire Act.
Lance was not seeking representative standing but rather argued
the Act's overbreadth. The distinction is significant. A party claiming representive standing alleges personal injury as well as injury
43. 641 F.2d at 312.
44. [d. at 310-12. The abstention doctrine played a significant role in the disposition of
the appeal. See text accompanying notes 110-137 infra.
45. 635 F.2d 1132 (5th Cir. 1981) (en banc). A three judge panel· concluded that the
Federal Election Campaign Act, 2 U.S.C. §§ 437h(a), 441b (1976 & Supp. II 1979), required
that since the appeal raised a constitutional issue it had to be submitted to the en banc
court. FEC v. Lance, 617 F.2d 365, 37.4 (5th Cir. 1980). The en banc court agreed. FEC v.
Lance. 635 F.2d 1132, 1136-37 (5th Cir. 1981) (en banc). See generally California Medical
Ass'n v. FEC, 641 F.2d 619 (9th Cir. 1980). The investigation out of which the case arose
involved Mr. T. Bertram Lance's efforts to win the governorship of Georgia, which came
before he gained national prominence as a brief-tenured Director of the Office of Management and Budget under President Carter.
.
46. 2 U.S.C. § 441b (1976 & Supp. III 1979). This provision is now part of the Federal
Election Campaign Act, 2 U.S.<;:. §§ 431-455 (1976 & Supp. III 1979). See First Nat'l Bank
v. Bellotti, 435 U.S. 765, 788 n.26 (1978).
47. 635 F.2d at 1138 (quoting Oklahoma Press Publ. Co. v. Walling, 327 U.S. 186, 209
(1946».
48. 635 F.2d at 1139. Lance based his constitutional challenge on First Nat'l Bank v.
Bellotti, 435 U.S. 765 (1978) and Buckley v. Valeo, 424 U.S. 1 (1976).
49. 635 F.2d at 1140.
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to third persons whose rights ought to be considered. IIO By contrast,
in a first amendment facial overbreadth challenge to a statute, the
party claims that while a narrowly drawn statute could constitutionally prohibit the conduct involved, the challenged statute fatally includes constitutionally protected activity. In such a situation the party before the court has been injured in fact only by
being denied a right to be prosecuted under a narrowly drawn statute. 111 Lance was not permitted to lay such a constitutional claim
because of the severability and consequent narrowing of the Act
and because the court was convinced that t4e raison d'etre of the
overbreath doctrine, that the mere existence of the overbroad law
will "chill" the exercise of third persons' rights, did not apply to
the Act which specifically provided for a declaratory challenge to
test its constitutionality. CI2
The second doctrine which limits the judicial review power of
the federal courts qua courts is mootness. In contrast to the standing inquiry, the mootness focus is on the sequence of events.
Rooted at once in the article III "case or controversy" requirement
and in classic notions of judicial self-restraint, the mootllless doctrine is based on a concern for the existence of the legal controversy; in a moot case "there is no subject-matter on which the
judgment of the court can operate. "118 During the period surveyed
the court decided two significant appeals involving the doctrine of
mootness.
The plaintiff in Familias Unidas v. Briscoe ll4 was an unincorporated organization of Mexican-American students and adults
formed to air grievances and seek reform of a Texas city's public
schools. Having become frustrated by the response of the school
officials, plaintiff's members took steps to boycott the schools.
School officials responded by invoking a state statute to compel
disclosure of the names of all the officers and members of the or50. See text accompanying note 34 supra.
51. J. NOWAK, R. ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW 79-80 (1978) [hereinafter
cited as CONSTITUTIONAL LAW). Ct. Smith v. Price, 616 F.2d 1371, 1380 (5th Cir. 1980).
52. 2 U.S.C. § 437h (Supp. III 1979); 635 F.2d at 1141. See Broadrick v. Oklahoma,
413 U.S. 601 (1973). The court also relied on the separation of powers notion that administrative subpoena proceedings be limited forums. See FTC v. Texaco, 555 F.2d 862, 873 (5th
Cir. 1977). Lance lost on the merits of his narrowed claim. 635 F.2d at 1141-42.
53. Ex parte Baez, 177 U.S. 378, 390 (1900). Of course, if a once substantial constitutional claim becomes moot during the litigation, the federal court may still have pendent
jurisdiction over a related statutory claim which remains valid. See Silva v. Vowell, 621 F.2d
640 (5th Cir. 1980), cert. denied, 101 S. Ct. 941 (1981).
54. 619 F.2d 391 (5th Cir. 1980).
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ganization. 55 When the county judge ordered the disclosure, the organization sued in federal court, seeking declaratory, injunctive
and damage relief. Before any response was made to the disclosure
order, the boycott ended and the county judge withdrew the disclosure demand. Thereafter, school officials formally decided against
future invocations of the disclosure statute. Still the plaintiff organization pressed for federal relief. The withdrawal of the disclosure order and the assurance that no further requests would be
made under the statute rendered the request for injunctive relief
moot. "The test of mootness in a case for injunctive relief is
whether the injury is continuing or is likely to be repeated. "58 Because the statute had been applied to the organization which allegedly had suffered damage from lost membership and support, the
underlying controversy was not moot. 51
The second significant mootness decision during the survey
period was Ciudadanos Unidos v. Hildalgo County.58 The plaintiffs filed civil actions seeking to establish that Mexican-Americans, women, the young and the poor had been excluded from state
grand juries unconstitutionally.59 The court concluded that the
plaintiffs presented a live case or controversy even though selection
of each grand jury list was a distinct act performed by an autonomous county commission. 80 Allegations of a ten year pattern of discrimination were not overcome with any showing on the part of
defendants that there was "no reasonable expectation that the
wrong will be repeated. "81 Because the selection scheme provided
pronounced opportunities for continuing such alleged discriminations, the election of a successor key official and legislative amendments did not moot the lawsuit.8s The court seemed preoccupied
with preventing the defendants from "avoid[ing] suit by a mere
temporary change of practice, after which they would be 'free to
return to [their] old ways.' "83
55. TEx. EDUC. CODE ANN. tit. 1, § 4.28 (Vernon 1972).
56. See Southwestern Bell Tel. Co. v. Communications Workers, 454 F.2d 1333, 1334
(5th Cir. 1971), quoted in Familias Unidas v. Briscoe, 544 F.2d 182, 187 (5th Cir. 1976).
57. 619 F.2d at 397-98.
58. 622 F.2d 807 (5th Cir. 1980), cert. denied, 101 S. Ct. 1479 (1981).
59. [d. at 810. While the opinion blended standing and mootness, the real concern was
the continued existence of the controversy. See id. at 815 n.17.
60. [d. at 820-22.
61. [d. at 825 (quoting United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953».
62. 622 F.2d at 822-25. The legislative changes were deemed inconsequential to the
issue of mootness.
63. [d. at 825 (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953».
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Advisory Opinions, Political Questions and Ripeness
The principles which coalesce in the notion of separation of
powers also provide threshold limits on the federal power of judicial review. 64 Three of these principles, the ban on advisory opinions, the political question doctrine and the requirement of ripeness, drew the attention of the court during the survey period.
The most significant underpin'ning of the ban on advisory
opinions is that their issuance would so enlarge the sphere of judicial review that the separation of powers would be violated. Relying on the fundamental notion that "the federal courts do not decide abstract, hypothetical, or contingent questions," the court
refused to render an advisory opinion in Halder v. Standard Oil
Co. 61l Too hypothetical was a franchisee's concern that if the state
condemned the' parcel of land involved, and if compensation included payment for loss of business opportunity or good will, and
if the franchisor did not fairly apportion the compensation, then
the franchisee would be injured. 66 The court declined to render an
advisory opinion on "mere prediction."67
The court applied the political question doctrine in disposing
of the appeal in O'Hair v. Hill. 68 The plaintiffs challenged a provision of the Texas Constitution under the guaranty clause of the
Constitution. 6D The court simply invoked, the political question
doctrine to dismiss the challenge, citing Luther v. Borden. 70 This is
curious because from 1849, when Luther v. Borden was decided,
until now, the guaranty clause has been considered not to be "a
repository of judicially manageable standards which a court could
utilize independently in order to identify a state's lawful government. 71
The last-considered principle of justiciability, which rests on
64. See, e.g., Federal Election Comm'n v. Lance, 617 F.2d 365, 368-69 (5th Cir. 1980),
submitted to en banc court, 635 F.2d 1132, 1136-38 (5th Cir. 1981) (limited role of the
federal courts in administrative investigations).
65. 642 F.2d 107, 110 (5th Cir. 1981).
66. [d. The franchisee sued under the Petroleum Marketing Practices Act of 1978, 15
U.S.C. § 2801-2841 (1976 & Supp. III 1979), which was a congressional effort to increase a
petroleum industry franchisee's bllrgaining strength. 642 F.2d at 109-10.
67. 642 F.2d at 109 n.l. Chief Judge Godbold specially concurred to emphasize the
narrow holding of prematurity. [d. at 112.
68. 641 F.2d 307 (5th Cir. 1981).
69. U.S. CONST. art. IV, § 4.
70. 48 U.S. (7 How.) 1 (1849).
71. Baker v. Carr, 369 U.S. 186, 223 (1962).
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the separation of powers in our federal government, is ripeness.
The doctrine of ripeness is based on a concern for the fundamental
"nature of the judicial process,"72 i.e., the institutional role of the
federal judiciary.7s Somewhat analogous to mootness, which involves a suit filed "too late," ripeness involves a case brought "too
early."7. The ripeness doctrine is even more analogous to the ban
on advisory opinions which prohibits abstract or hypothetical declaratory judgments; while the latter is retrospective in the sense
that the requisite adversary case or controversy has failed to materialize, the ripeness doctrine is prospective in emphasizing that future events might create or destroy the justiciability of the
dispute.7&
In Federal Election Commission v. Lance,78 the en banc court
quoted the general rule for ripeness: "It must be a real and substantial controversy admitting of specific relief through a decree of
a conclusive character, as distinguished from an opinion advising
what the law would be upon a hypothetical state· of facts. "77 Lance
argued, inter alia, that the Federal Election Commission's investigation of his 1974 election under statutory authority enacted in
1975 and 1976 violated the ex post facto clause. 78 The en banc majority. held that thiR argument was too uncertain and contingent on
future events. 79 The record had not matured to include an administrative finding that no improprieties had occurred after the
statutory enactments. Lance's own unsworn assertions that such
were the facts did not place a court determination on firm judicial
ground beyond thin speculation. 80
Eleventh Amendment and Abstention
Federalism is the third major grouping of principles of justiciability which circumscribe the power of judicial review of the
72. K. DAVIS, ADMINISTRATIVE LAW TEXT § 21.01, at 396 (3d ed. 1972).
73. TRIBE, supra note 6, at 60.
74. CONSTITUTIONAL LAW, supra note 51, at 64.
75. TRIBE, supra note 6, at 61.
76. 635 F.2d 1132 (5th Cir. 1981) (en banc). See text accompanying notes 45-52 supra.
77. [d. at 1138 (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937»,
78. U.S. CONST. art. I, § 9, cl. 3.
79. 635 F.2d at 1139. Four dissenting judges agreed with Lance on the ex post facto
claim. 635 F.2d at 1143. (Coleman, C.J., dissenting).
80. [d. at 1138-39. In addition the statutory penalties included criminal and civil sanctions, the latter of which would be beyond the scope of the ex post facto clause. See Calder
v. Bull, 3 U.S. (3 Dall,) 386 (1798).
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federal courts. In two principal areas, the interpretation of the
eleventh amendment and the application of the abstention doctrines, the federal courts are restrained by the constitutional dynamics of the federal system itself and by principles of self-restraint inherent in the system. 81
The eleventh amendment82 does not act as a grant of immunity to the states. The states are not exempted from the limits of
federal law but are still suable for actions within its coverage only
in state courts. 8S While the eleventh amendment case law is welldeveloped and quite complicated, five basic inquiries are inevitable
in cases which raise an issue of coverage. 8 • The survey period saw a
representative sample of cases.
First, the amendment expressly bars suits by citizens of other
states and foreign nationals and impliedly bars suits by citizens of
the defendant state. 811 Thus, a Wisconsin resident could not sue the
State of Louisiana86 and a Texas plaintiff's suit against Texas
would likewise be barred. 87 Indeed, such "eleventh amendment
rights of a state are sufficiently jurisdictional to be asserted for the
first time on appeal. "88
81. During the survey period the court reaffirmed related precepts which help demarcate federal and state court realms. "[Bjecause federal courts are courts of limited jurisdiction, due regard for the constitutional allocation of powers between the state and federal
systems requires a federal court scrupulously to confine itself to the jurisdiction conferred
on it by Congress and permitted by the Constitution." In re Carter, 618 F.2d 1093, 1098
(5th Cir. 1980). The wavering of the line is illustrated with one example. While the general
rule has been that federal courts will decline jurisdiction over domestic relations, the federal
courts have always reviewed constitutional issues which arise in a domestic context. Rowell
v. Oesterle, 626 F.2d 437, 438 (5th Cir. 1980). There are, of course, also due process restrictions on the federal and state courts. See, e.g., Bankhead Enterprises, Inc. v. Norfolk & W.
Ry., 642 F.2d 802 (5th Cir. 1981); Gold Kist, Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d
375 (5th Cir. 1980); Southwest Offset, Inc. v. Hudco Publ. Co., 622 F.2d 149 (5th Cir. 1980);
Sumrall v. Moody, 620 F.2d 548 (5th Cir. 1980), cert. denied, 101 S. Ct. 1733 (1981).
82. U.S. CONST. amend. XI was adopted in response to Chisholm v. Georgia, 2 U.S. (2
Dall.) 419 (1793).
83. CONSTITUTIONAL LAW, supra note 51, at 48.
84. In resolving issues under the Eleventh Amendment we should ask five basic
questions: (1) is the plaintiff one to whom the Amendment applies? (2) is the suit
truly against the state? (3) is the suit seeking relief in a manner that is barred by the
Amendment? (4) has the state waived its immunity? (5) is there a congressional statute which can override the immunity in this area?
Id. at 50.
.
85. Hans v. Louisiana, 134 U.S. 1 (1890).
86. Dagnall v. Gegenheimer, 631 F.2d 1195, 1196 (5th Cir. 1980).
87. Downing v. Williams, 624 F.2d 612, 625 (5th Cir. 1980), vacated on other grounds,
645 F.2d 1226 (5th Cir. 1981).
88. 631 F.2d at 1196.
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Second, the suit must actually be against the state, that is, the
state must be the real party in interest. 89 The jurisdictional bar has
been interpreted to also bar attempts at circumvention by suing a
"governmental unit or individual, which stands in the shoes of the
state."90 To make this determination "a court must examine the
relationships and duties created by state law as to the institution
or individual involved."91 In Downing v. Williams,92 whether a
state mental health and mental retardation facility was a state instrumentality for eleventh amendment purposes was so complex an
issue on which th~ parties had not been heard that the court remanded the issue to the district court.93. Suits against the private
defendants in their individual capacity, however, were not deemed
barred by the eleventh amendment despite the state's indemnity
statute. The indemnity statute was deemed only an agreement between the state and the individuals. The court reasoned that to
hold otherwise would always allow the state to claim immunity for
individuals sued in their private capacity.94
Third, the suit must seek relief in a manner which is barred by
the eleventh amendment. At one time the bar was interpreted to
prohibit "all suits in which plaintiffs sought to restrain or to compel the action of state officials performing official duties imposed
by constitutional state laws."9S Subsequent refinements of the doctrine narrowed the bar to
I
"suits 'by private parties seeking to impose a liability which must be
paid from public funds in the state treasury,' ... '[that are] the
necessary result of compliance with decrees which by their terms
[are] prospective in nature' at least ... where the very controversy
is a result of our federal system."Be
89. See Lincoln County v. Luning, 133 U.S. 529 (1890).
90. Downing v. Williams, 624 F.2d 612, 625 (5th Cir. 1980) (citing Edelman v. Jordan,
415 U.S. 651 (1974) and In re Ayers, 123 U.S. 443 (1887».
91. Downing v. Williams, 624 F.2d 612, 626 (5th Cir. 1980) (citing Hander v. San
Jacinto Jr. College, 519 F.2d 273 (5th Cir. 1975».
.
92. 624 F.2d 612 (5th Cir. 1980).
93. Id. at 626.
94. Id. See Scheuer v. Rhodes, 416 U.S. 232 (1974).
95. Lummis v. White, 629 F.2d 397, 401 (5th Cir. 1980) (citing Worcester County
Trust Co. v. Riley, 302 U.S. 292, 296-300 (1937».
96. Lummis v. White, 629 F.2d 397, 401-02 (5th Cir. 1980) (citations omitted) (quoting
California v. Texas, 437 U.S. 601, 616 (1978) (Powell, J., concurring) wherein was quoted
Edelman v. Jordan, 415 U.S. 651, 663, 667-68 (1974». In Lummis the court was guided by
the views of four justices in concluding that Worcester County Trust Co. v. Riley, 302 U.S.
292 (1937), had been eroded. 629 F.2d at 401-02. See text accompanying note 95 supra.
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Thus, the eleventh amendment did not bar an administrator of an .
estate, who was threatened with assessment and collection of death
taxes by two states, from bringing a statutory interpleader action
for a determination of the decedent's domicile. 97
Fourth, the state may waive its eleventh amendment protection. jrh~-waiver may be express as through Ii blanket. statute or in
individual actions by an authorized officia1. 98 Whether such a
waiver is valid is a question of state law. 99 When an attorney for a
state agency had no authority under state law to waive the state's
eleventh amendment protection, the bar could be raised even after
the state had sought a favorable verdict and lost before the jury.100
Even an implied waiver is possible. lol Indeed, the Fifth Circuit
held in Familias Unidas v. Briscoe l02 that "states may be considered to have waived their immunities and consented to such suits
in federal court through their ratification of the fourteenth
amendment. "103
Finally, there may be a congressional statute which overrides
the immunity.l04 For example, the states' immunity "must necessarily be understood to have been modified by the dictates of the
subsequently enacted Fourteenth Amendm.ent."loll Nevertheless,
Congress must make it "unmistakably clear, either in statutory·
language or in legislative history, that it purposefully intends to
make the states amenable to private damages actions under the
97. Lummis v. White, 629 F.2d 397, 402 (5th Cir. 1980). In a second case the costs of
notice to class members was deemed so ancilliary to the prospective relief granted against
the state as to be allowable under the eleventh amendment. Silva v. Vowell, 621 F.2d 640,
652-54 (5th Cir. 1980). Although the court rejected the argument, it did entertain a curious
cost/benefit argument in which the state urged that the expenses of such a notice were so
excessive as to engage some sort of extraordinary protection under the eleventh amendment.
98. Such a waiver must go beyond merely allowing suits in courts which otherwise
have jurisdiction. See Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945).
99. Id.
100. Dagnall v. Gegenheimer, 631 F.2d 1195, 1196 (5th Cir. 1980). The court recognized the inequitable scenario that had the state prevailed it would have claimed it had
consented to the suit. Still, the state law and the eleventh amendment compelled such a
result. Id.
101. See Parden v. Terminal R.R., 377 U.S. 184 (1964); Petty v. Tennessee-Missouri
Bridge Comm'n 359 U.S. 275 (1959).
102. 619 F.2d 391 (5th Cir. 1980).
103. Id. at 405 (citing Peel v. Florida Dep't of Transp.; 600 F.2d 1070, 1078 (5th Cir.
1979».
104. CONSTITUTIONAL LAW, supra note 51, at 53. See generally Field, The Eleventh
Amendment and Other Sovereign Immunity Doctrines: Corigressional Imposition of Suit
upon the States, 126 U. PA. L. REV. 1203 (1978).
105. 619 F.2d at 405 (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 455-56 (1975».
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particular statute in question. "106 While the Civil Rights Act of
1871 107 was enacted to enforce the fourteenth amendment, the
court in Familias Unidas held that neither the statutory language
nor the legislative history satisfied the test. lOS Under this statute
the state could not be held liable even for nominal damages. 109
Federalism is' also the operative policy underlying the various
abstention doctrines. The decisions of the Supreme Court have established three general categories of abstention, and the Fifth Circuit decided appeals in each category during the survey period. 110
The original abstention case which gave its name to the first
category was Railroad Commission v. Pullman CO.lll There the
plaintiff railroad company challenged an order of the state railroad
commission, claiming that the order was unauthorized under state
law and violated the Federal Constitution. Since it did not have to
reach the constitutional issue of whether the order was beyond the
commission's authority, the Supreme Court withheld decision
pending a state court proceeding which would construe the state
law.ll2 Two requirements must be satisfied for a Pullman abstention: (1) a central issue of state law involved must be unsettled,
and (2) there must be a likelihood that one possible determination
of the state law issue would obviate the decision of a federal constitutional issue in the case.ll8
The court agreed that Pullman abstention was appropriate in
two cases decided during the survey period. In the first, Palmer v.
Jackson,114 a group of attorneys brought an action challenging a
one-time fee assessment imposed on attorneys in the state to pay
106. 619 F.2d at 405 (citing Edelman v. Jordan, 415 U.S. 651, 672·73 (1974».
107. 42 U.S.C. § 1983 (Supp. III 1979).
108. 619 F.2d at 405 (citing Quern v. Jordan, 440 U.S. 332, 339 (1979) and Alabamav.
Pugh, 438 U.S. 781, 782 (1978».
109. 619 F.2d at 405.
110. Perhaps significant and worth noting is that during the survey period the court
did not apply two other related categories of abstention. Despite its crushing docket the
court did. not abstain merely to serve its own convenience. See WRIGHT, supra note I, at 227.
A fifth category of abstention, which fallows the federal court to stay its hand in private
diversity litigation to avoid having to decide difficult questions of state law, was also not
used during the survey period. United Services, Inc. v. Delaney, 328 F.2d 483 (5th Cir.
1964), cert. denied, 377 U.S. 935 (1965).
111. 312 U.S. 496 (1941). See generally Field, Abstention in Constitutional Cases:
The Scope of the Pullman Abstention Doctrine, 122 U. PA. L. REV. 1071 (1974).
112. 312 U.S. at 501·02.
113. Palmer v. Jackson, 617 F.2d 424, 428 (5th Cir. 1980).
114. Id.
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for a new state bar building, under multiple provisions of state law
and the Federal Constitution. lltl The shotgun backfired when the
court concluded that the unresolved and unclear issues of state law
they raised fulfilled the first requirement of Pullman abstention. liS
The plaintiffs admitted that their suit raised numerous unsettled
issues of state law. Nevertheless, they urged nonabstention because
the state court which would decide the unsettled state law issues
was a party to the litigation. Thus, there was no state forum which
could impartially adjudicate the state law issues. The court rejected this argument on the basis of state case law which made
clear that the state's courts often reviewed court-adopted rules in
light of constitutional and statutory measures. ll7 The prior administrative involvement of the state supreme court was deemed insufficient to prevent the state court from performing its role in developing state law. ll8 The second requirement of Pullman abstention
was also satisfied. Plaintiffs' challenges on the special assessment
under the due process and equal protection clauses would be rendered moot by a determination that the assessment was unauthorized or illegal under state law. ll8 Therefore, abstention was
proper. 12O Consistent with the procedure of abstention generally,
the plaintiffs would be free to sue in state court and raise all their
state law and constitutional law issues, or expressly reserve the
federal issues for federal court resolution after the state court
proceedings. 121
In Ziegler v. Ziegler,122 the court was faced with a state statute
which had not been construed by the state courts and was amena115. [d. at 427·28.
116. Unsettled issues of state law included (1) the validity of the encumbrance on
state property; (2) the legality of the fee assessment; (3) whether failure to pay the assessment would result in disbarment; and (4) whether the bar's arrangement complied with the
state constitution and applicable bar regulations. [d. at 428-29.
117. [d. at 429-30. See Cameron v. Greenhill, 582 S.W.2d 775 (Tex. 1979).
118. 617 F.2d at 430.
119. The plaintiffs' first amendment free association challenge to compulsory bar
membership would also be either avoided or materially changed. [d. at 431. See Harrison v.
NAACP, 360 U.S. 167, 177 (1959). It was not a valid basis for refusing abstention, in part,
because the merits appeared foreclosed by Lathrop v. Donohue, 367 U.S. 820 (1961) (plurality opinion).
120. While the general procedure is for the federal court to stay further action but
retain jurisdiction, because of a wrinkle in the Texas Declaratory Judgment Law, the case
was properly dismissed without prejudice. 617 F.2d at 431 n.11. See Harris County Comm'rs
Court v. Moore, 420 U.S. 77 (1975).
121. 617 F.2d at 432 (citing England v. Louisiana State Bd. of Medical Examiners, 375
U.S. 411 (1964».
122. 632 F.2d 535 (5th Cir. 1980).
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ble to one constitutional construction, with a second construction
which would raise serious constitutional issues. Seeking to avoid
the peculiar situation of considering whether the statute was unconstitutional under the second construction when the state courts
could later give it the first constitutional construction, the court
concluded abstention was appropriate. 123 Such a postponement of
federal jurisdiction, especially in the area of domestic relations law
involved in the case, would avoid "unnecessary constitutional decisions and ... promot[e] harmonious federal-state relations."124
One final factor swept into the calculus. The argument for Pullman abstention was made even more compelling by the existence
of a state action pending which was likely to resolve the state law
issues. The delay factor of commencing another state court proceeding, itself a factor often militating against abstention, was thus
minimized. l2II
In a third appeal the court affirmed the district court's declination to abstain. 12s The Pullman abstention requirements were
not satisfied in the class action to challenge the constitutionality of
the Mississippi procedures for civil commitment. The federalismbased reluctance to inject an unnecessary constitutional ruling into
an area of unsettled state law was absent. l27 The first element of
Pullman abstention was not present since the state statutory provisions were not ambiguous and their operation in practice was
clear.12S
The second type of abstention takes its name from Burford v.
Sun Oil CO.129 The Supreme Court in Burford held that the federal
court should have dismissed the suit because the issues revolved
around a highly specialized and complicated state regulatory system.180 Burford abstention is now required when "there have been
presented difficult questions of state law bearing on policy
problems of substantial public import whose importance transcends the result in the case then at bar."181 In Appling County v.
123. [d. at 538-39.
124. [d. at 539.
125. [d. See Baggett v. Bullitt, 377 U.S. 360 (1964).
126. Chancery Clerk v. Wallace, 646 F.2d 151 (5th Cir. 1981).
127. [d. at 155.
128. [d.
129. 319 U.S. 315 (1943).
130. [d.
131. Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 814 (1976).
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Municipal Electric Authority,132 the county and its citizens and
taxpayers brought suit against the owners of a nuclear power plant
to collect additional ad valorem taxes. The Fifth Circuit affirmed
in a single sentence opinion the holding of the district court that
the federal courts lacked jurisdiction over the relationships
involved. 133
Of the third category of abstention, on,e prominent federal
court expert has observed: "There is no more controversial, or
more quickly changing, doctrine in the ftederal courts today
• • • • "IM Often referred to as "Our Federalism," the doctrine is
identified with the Supreme Court's decision in Younger v. Harris. 131i The basic notion of Younger abstention is that a federal
court will stay its hand where "absent bad faith, harassment"or a
patently invalid state statute, federal jurisdiction has been invoked
for the purpose of restraining state criminal proceedings. "136 In
each of three cases in which the Younger abstention doctrine was
invoked, the court declined to apply it. In all three cases the reason was the same: the threshold requirement of a pending state
proceeding was not satisfied so there was no referent for federal
'
deference. 137
COMMERCE CLAUSE
During the survey period .the court had occasion to apply general notions of the commerce clause power. In Scott v. Moore/ 3s a
construction company and two of its employees sued two unions
and individual union members, alleging that the defendants had
conspired to deprive plaintiffs of equal protection and their privileges and immunities by planning and executing' an attack on
plaintiffs' construction site. The' defendants argued that, even if
132. 621 F.2d 1301 (5th Cir.), cert. denied, 449 U.S. 1015 (1980).
133. [d. at 1302.
134. WRIGHT, supra note I, at 229.
135. 401 U.S. 37 (1971).
136. Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 816 (1976).
For a detailed exposition of this volatile doctrine see generally 17 C. WRIGHT, A. MILLER, E.
COOPER, FEDERAL PRACTICE AND PROCEDURE §§ 4251-4255, at 533-87 (1978).
137. Davis v. Page, 640 F.2d 599, 601-02 (5th Cir. 1981); Aladdin's Castle, Inc. v. City
of Mesquite, 630 F.2d 1029, 1037 (5th Cir.), prob. juris. noted, 49 U.S.L.W. 3863 (1980);
Let's Help Florida v. McCrary, 621 F.2d 195, 199 (5th Cir.), appeal docketed, 49 U.S.L.W.
3467 (1980). But see Fitzgerald v. Peek, 636 F.2d 943 (5th Cir. 1981).
138. 640 F.2d 708 (5th Cir. 1980).
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the Ku Klux Klan Act of 1861 189 was intended to provide a civil
remedy for a wholly private conspiracy of the kind alleged, Congress lacked the power to enact legislation of such breadth. The
court held that the commerce clause empowered Congress to reach
the defendants' conduct.140
During the survey period the court thrice wrestled with the socalled "dormant" commerce clause which requires a judicial determination of the extent of permissible state regulation of interstate
commerce in the absence of federal legislation. Because the commerce clause is an affirmative grant of power to Congress, the doctrine developed to limit state interference with interstate commerce. It is based on "negative implications," i.e., by interpreting
what Mr. Justice Jackson called the "great silences of the Constitution. "141 Thus, the federal judicial role in confining economic localism is directly implicated by the rationale of the commerce
clause "to create and foster a common market among the
states. "142
In Louisiana Dairy Stabilization Board v. Dairy Fresh
Corp.,148 the plaintiff Board appealed from a judgment invalidating
a state regulation insofar as it affected dairy products processed,
sold and delivered out-of-state by nonresident processors. 1.. In
1974 Louisiana enacted the Dairy Stabilization Law which itself
made no distinction between in-state and out-of-state processors. 1U Passed as a comprehensive regulation of the dairy industry
to protect producers, processors and distributors, the legislation
sought to ensure against price wars, unfair competition and disruptive trade practices through a comprehensive scheme of licensing.
139. 42 U.S.C. § 1985 (1976).
140. 640 F.2d at 724. The court avoided the plaintiffs' suggested fourteenth amendment basis as "fraught with uncertainty." [d. at 725. Equally unsupportable on the record
were the two sources of power relied on in a leading Supreme Court case, the thirteenth
amendment and the right to travel. [d. at 724-25. See Griffin v. Breckenridge, 403 U.S. 88
(1971).
141. H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 535 (1949). In contrast the
states are expressly forbidden to interfere with foreign commerce. U.S. CONST. art. I, § 10, cl.
2.
142. CONSTITUTIONAL LAW, supra note 51, at 244. See Service Machine & Shipbuilding
Corp. v. Edwards, 617 F.2d 70, 73 (5th Cir. 1980).
143. 631 F.2d 67 (5th Cir. 1980).
144. The Board had sought a declaratory judgment pertaining to its powers to regulate
two nonresident companies. The defendant companies won a counterclaim based on the
commerce clause. Louisiana Dairy Stabilization Bd. v. Dairy Fresh Corp., 476 F. Supp. 416
(M.D. La. 1979).
145. LA. REV. STAT. ANN. §§ 40:931.1-.19 (West 1977 & Supp. 1981).
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and regulation. u8 The district court found that the defendants
completed the processing of the products sold to Louisiana retailers in states other than Louisiana and that the sale and delivery of
the products took place outside the state. The products were then
imported and resold in the state by the retailer.147 The Board contended that the defendant processors had to be licensed which involved a three cents per hundredweight assessment and a detailed
set of requirements covering record keeping, payment and credit
arrangements, delivery methods, and sales techniques. u8 The
Board's effort to regulate these defendants in such a manner was
held to violate the commerce clause, under the basic rule that a
statutory purpose or effect which seeks to insulate state producers
from competitive interstate commerce unreasonably burdens the
flow of interstate comm~rce.149 In response to the Board's contention that it did not fix prices but only imposed the assessment and
other requirements as incidents of its antitJ'ust efforts, the court
invoked the seminal Supreme Court decision in Baldwin u. G.A.F.
Seelig, Inc.,tGO which held invalid a New York effort to fix minimum dairy prices. While the state had the power to regulate interstate activities to protect producers, processors and distributors, it
could not project its regulation beyond its borders. Louisiana's invocation of the antitrust talisman was deemed no more significant
than was New York's effort in Baldwin to enforce dairy regulations
purposed to protect public health and safety.Ul The court followed
the teachings of Baldwin in rejecting the antitrust distinction, for
the argument would prove too much in that it would justify virtu146. See 631 F.2d at 68.
147. Under previous legislation the Louisiana Milk Commission, which preceded the
Board, sought to set retail prices. A supermarket retailer, recognized as something of a New
Orleans institution, sought to circumvent the regulation by purchasing dairy products
processed out-of-state for importation into and resale in Louisiana. See Schwegmann Bros.
Giant Supermarkets v. Louisiana Milk Comm'n, 365 F. Supp. 1144 (M.D. La. 1973) (threejudge court), aff'd, 416' U.S. 922 (1974). After Schwegmann successfully challenged the application of the regulation to such an arrangement on the basis of the commerce clause, the
deal was struck with the defendants in the instant case. Louisiana Dairy Stabilization Bd. v.
Dairy Fresh Corp., 476 F. Supp. 416, 418 (M.D. La. 1979). Extensive litigation with the state
health agency ended in an order to permit the importation and resale. Schwegmann Bros.
Giant Supermarkets v. Edwards, 323 So. 2d 810 (La. App. 4th Cir.), writ denied, 326 So. 2d
503 (La. 1976). In 1976 Louisiana abolished the Commission and created the Board that was
given broad regulatory powers which did not include fixing prices.
148. 631 F.2d at 68.
149. [d. at 69.
150. 294 U.S. 511 (1935). See also H.P. Hood & Sons v. DuMond, 336 U.S. 525 (1949).
151. 631 F.2d at 69. The fact that the Louisiana scheme did not set prices was not
deemed a reason for not applying the Baldwin rule. [d.
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ally all trade barriers erected against incoming commerce. 1112
The issue in Smith v. Department of Agriculture l1l3 was
whether a farmers' market was an economist's market. The State
of Georgia operated a farmers' market at which those with state
licenses could rent space to sell their produce. Certain locations
were more desirable because they provided better protection from
the elements, superior produce displays, and greater accessibility.
The plaintiff, a resident of Alabama, had sold produce at the market for twenty years. Booth assignments were made irrespective of
residency until 1973 when the Georgia Department of Agriculture
adopted a rule 'of assignment based solely on state residency, with
the avowed purpose of providing a competitive advantage for
Georgia farmers. The majority framed the threshold issue to be
whether Georgia was acting in a proprietary or a regulatory capacity, distilling a distinction from recent Supreme Court decisions
between the state as a market participant and as a market regulator. 1M The majority concluded that Georgia was acting as a market
regulator which then subjected the residency regulation to commerce clause scrutiny.lIiIi Under traditional commerce clause analysis the regulation was found wanting. lIi8 The dissenting judge was
convinced that the state was operating in a proprietary role in the
market for booths and not the market for produce. 11I7 Booth assignment thus was not regulation of a market in produce or in booths,
but merely the state's participation in the farmers' market or
booth business. As a proprietor, the dissent reasoned, the state
152. But cf. Breard v. Alexandria, 341 U.S. 622 (1951) (legitimate state purpose may
be served with least restrictive means when intrastate benefit outweighs interstate burden).
153. 630 F.2d 1081 (5th Cir. 1980).
154. ld. at 1083.
155. ld.
156. Given the avowed purpose of protecting in-state farmers, the state's burden was
"virtually insurmountable." ld. at 1084. The three-pronged inquiry considers:
(1) whether the challenged statute regulates evenhandedly with only "incidental"
effects on interstate commerce, or discriminates against interstate commerce either
on its face or in practical effect;
(2) whether the statute serves a legitimate local purpose; and, if so,
(3) whether alternative means could promote this local purpose as well without discriminating against interstate commerce.
Hughes v. Oklahoma, 441 U.S. 322, 336 (1979), quoted in 630 F.2d at 1084. The party challenging the statute must demonstrate discrimination against interstate commerce. Once that
burden is satisfied, the state must justify the discrimination by showing the effectiveness of
the statute and the absence of nondiscriminatory means to serve the local interest. See 441
U.S. at 336.
157. 630 F.2d at 1088 (Randall, J'., dissenting). See also id. at 1086 (Gee, J.,
concurring).
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could deal in its booths· almost as it liked without violating the
commerce clause. 1118
The third dormant commerce clause decision, Service Machine & Shipbuilding Corp./&9 held a worker registration ordinance invalid under the commerce clause. 16o Because the ordinance
required registration of nonresident applicants seeking their first
job and did not require registration of similar resident applicants,
the ordinance discriminated against interstate commerce in favor
of local residents. 16l While crime control was deemed a legitimate
local purpose,162 such a scheme was not justified as an efficient or
the most efficient means of serving that local purpose since a
scheme requiring all first time applicants would be more efficient
and not discriminatory.16a Under the lesser standard applicable/ 6•
balancing the perceived benefits against the burdens on commerce,
the 'ordinance fell under its own weight. The putative benefits included deterring criminals from relocating in the parish and facilitating apprehension of those undeterred. The many impediments
to personal mobility as an incident of interstate commerce included highly detailed revelations of personal information and a
158. Id. at 1088 (Randall, J., dissenting); id. at 1086 (Gee, J., concurring).
159. 617 F.2d 70 (5th Cir. 1980). The focus was on the dormant commerce clause since
Congress had not exercised its power to preempt the area of crime control. Even in this area
Congress has exercised some commerce clause power. See, e.g., Perez v. United States,402
U.S. 146 (1971).
160. The commerce clause goes beyond state statutes to reach local ordinances. 617
F.2d at 73 (citing Dean Milk Co. v. Madison, 340 U.S. 349 (1951)).
161. Registration was a detailed and cumbersome procedure imposed .on employers of
itinerant laborers, defined as those who traveled into the parish seeking employment and
residents of the parish who sought to change employment. 617 F.2d at 72. Registration included fingerprinting, photographing the subject, disclosure of personal information and
payment of a fee. Id. at 71-72 n.2.
162. Id. at 74. The parish had concluded that rapid population growth and a large
influx of industry with an immigration of transient laborer:, had boosted the local crime
rate. Id. at 71.·
163. Id. at 75 .
. 164. Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), described the balancing as
follows:
Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld
unless the burden imposed on such commerce is clearly excessive in relation to the
putative local benefits. If a legitimate local purpose is found then the question becomes one of degree. And the extent of that burden that will be tolerated will of
course depend on the nature of the local interest involved, and on whether it could be
promoted as well with a lesser impact on interstate activities.
Id. at 142 (citation omitted). City of Philadelphia v. New Jersey, 437 U.S. 617 (1978). The
second analysis differs from the first analysis only in that the former defers more to local
interest by not assuming a discrimination against interstate commerce.
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fee which disproportionately burdened the poor laborer and the
employer with numerous employees. The court was convinced that
a less intrusive scheme was possible.
SUBSTANTIVE DUE PROCESS
Ever since substantive due process has been characterized by
near complete judicial deference to the legislative process, statutes
have been upheld for "virtually no substantive reason at all . . .
except where constitutional provisions much more explicit than
due process were in jeopardy.m611 While the standard may have
some content, its application has been substanceless due process.
No citation of authority is necessary; the bold black letter corollary
to the constitutional standard has been that when a substantive
due process argument is raised, the court will defer' to the judg-'
ment of the state legislature 166 and Congress. 167 Although the surveyed term generally followed this corollary, there were a few notable exceptions.
In a series of rather routine substantive due process. decisions,
the court upheld the following acts as rational: the imposition of a
strict liability, civil monetary penalty under the 1972 amendments
to the Federal Water Pollution Control Act168 upon the owner of a
facility which discharged gasoline into navigable waters, even
though the discharge resulted solely from the' acts of an unknown
third person;169 application of the Mississippi Business Sign Statute 170 which authorized creditors of an improperly disclosed principal or partner to execute and sell business property used to transact business;l7l the application of the 197-2 amendments to the
Longshoremen's and Harbor Workers' Compensation Act,l7! ex165. TRIBE, supra note 6, at 450-51 (citing Ferguson v. Skrupa, 373 U.S. 726 (1963».
166. U.S. CONST. amend. XIV. See, e.g., Bruneau's, Inc. v. Nichols, 642 F.2d 146 (5th
Cir. 1981); Anderson v. Winter, 631 F.2d 1238 (5th Cir. 1981); Oster v. City of New Orleans,
631 F.2d 71 (5th Cir. 1980); Mitchell v. Board of Trustees, 625 F.2d 660 (5th Cir. 1980);
Davidson v. Georgia, 622 F.2d 895 (5th Cir. 1980).
167. U.S. CONST. amend. V. See, e.g, United States v. Coastal States Crude Gathering
Co., 643 F.2d 1125 (5th Cir. 1981); Travelers Ins. Co. v. Marshall; 634 F.2d 843 (5th Cir.
1981).
168. Federal Water Pollution Control Act Amendments of 1972, § 2, 33 U.S.C. § 1321
(1976 & Supp. III 1979).
169. United States v. Coastal States Crude Gathering Co., 643 F.2d 1125 (5th Cir.
1981).
170. MISS. CODE. ANN. § 15-3-7 (1972).
171. Bruneau's, Inc. v. Nichols, 642 F.2d 146 (5th Cir. 1981).
172. Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, §
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tending employee benefits coverage to deaths causally unrelated to
previous maritime injury, to impose liability on an insurance carrier covering the employer at the time of a preamendment injury;173 the Mississippi dual retirement system for state employees
so far as it provided greater benefits for officers of the State Highway Safety Patrol than for agents of the State Bureau of Narcotics;174 a New Orleans ordinance, governing licensing and operation
of massage parlors, which detailed recorc,lkeeping requirements,
hours of business, administrative inspectioI1S and coverage exemptions;1711 application of a local ,Mississippi school board rule which
mandated automatic expulsion of any student who brought a
weapon to school;176 and the procedures for administering the
Georgia Bar Examination.177 More intriguing are the two decisions
in which the court declared legislation invalid under the due process clause.
In Harper u. Lindsay,178 the court handled a complex due
process challenge to a comprehensive set of county regulations for
massage parlors. 179 The court gave short shrift to plaintiffs' arguments that the pursuit of a legitimate business was a fundamental
right and thus required a compelling state interest to justify its
regulation. Such a theory of strict scrutiny was seen as nothing
more than an attempt to resurrect the lon~~-discredited concept of
substantive due process and violated the "well established rule
that state regulations of business or industry are to be reviewed
under the less exacting 'rational basis' stan(jard. mso The court eas5, 33 U.S.C. §§ 901-950 (1976 &' Supp. III 1979).
173. Travelers Ins. Co. v. Marshall, 634 F.2d 843 (5th Cir. 1981). Such retrospective
legislation, although not favored, is not per se unconstitutional. Id. at 846 (citing Stephens
v. Cherokee Nation, 174 U.S. 445.(1899), and Blount v. Windley, 95 U.S. 173 (1877». Its
retroactive quality subjected the legislation to a somewhat heightened level of scrutiny. See
Usery v. Turner Elkhorn Mining Co., 428 U.S. I, 17 (1976).
,174. Anderson v. Winter, 631 F.2d 1238 (5th Cir. 1980).
175. Oster v. City of New Orleans, 631 F.2d 71 (5th Cir. 1981). See also text accompanying notes 178-184 infra.
176. Mitchell v. Board of Trustees, 625 F.2d 660 (5th Cir. 1980).
177. Davidson v. Georgia, 622 F.2d 895 (5th Cir. 1980).
178. 616 F.2d 849 (5th Cir. 1980).
179. The regulations were adopted pursuant to a Texas legislative authorization. TEx.
REV. CIV. STAT. ANN. art. 2372v, § 2(a) (Vernon Supp. 198()-1981). The scope of the legislative delegation was considered to include such regulations. Il16 F.2d at 852-54. Neither party
appealed the district court's holding that the ordinance banning heterosexual massage was
beyond the legislative delegation. Id. at 853. See Harper v. Lindsay, 454 F. Supp. 597, 60709 (S.D. Tex. 1978).
180. 616 F.2d at 854 (quoting Pollard v. Cockrell, 578 F.2d 1002, 1012 (5th Cir. 1978».
Contra, Corey v. City of Dallas, 352 F. Supp. 977 (N.D. Tex. 1972), rev'd on other grounds,
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ily conceived of a rational relation between the identified, actuaPSI
purpose of the ordinance, as an exercise of the police power to protect community health, welfare and morals by controlling massage
parlors, and each particular ls2 regulation. ls3 Regulations requiring
proof of identification and records of patrons' comings and goings
would prevent minors from patronizing such establishments and
inhibit adult patrons from soliciting illicit sex. The requirement
that masseurs and masseuses wear white clothing served ends of
health and sanitation. Various provisions applying to entrances,
exits and locks would allow for administrative inspections, discourage illicit behavior and aid fire escape. Regulations of hours and
outside premises would maintain neighborhood character. The regulation requiring a six-inch by six-inch unobstructed opening on
all interior doors, however, was found arbitrary and unreasonable
and hence unconstitutional. The provision did not secure free passage, facilitate fire escape or protect against foul play. The court
could conceive of no rational justification of this requirement. Suggesting that patrons were entitled to a "reasonable amount of privacy," the court concluded that the requirements served no valid
state interest. IS,.
The second recognized substantive due process denial came in
Aladdin's Castle, Inc. v. City of Mesquite/ s" which involved the
fundamental right to play "Space Invaders."ls6 The plaintiff owned
and operated a chain of family amusement centers and sought to
open a center in the defendant city. The defendant city had enacted an ordinance prohibiting children under the age of seventeen
from playing coin-operated games unless accompanied by a parent
or legal guardian. 1s7 The court reversed the district court188 and
492 F.2d 496 (5th Cir. 1974). See generally McCloskey, Economic Due Process and The
Supreme Court: An Exhumation and Reburial, 1962 SUP. CT. REV. 34.
181. See 616 F.2d at 869 (Vance, J., concurring). But see Williamson v. Lee Optical
Co., 348 U.S. 483 (1955).
182. See 616 F.2d at 869 (Vance, Jr., concurring).
183. [d. at 855-57. The court depended in large measure on its prior opinion in Pollard
v. Cockrell, 578 F.2d 1002 (5th Cir. 1978), which upheld a very similar ordinance.
184. 616 F.2d at 855. The majority used the privacy concern to support an irrationality conclusion. [d. Judge Vance, concurring, concluded the same regulation was unconstitutional for failing a strict scrutiny engaged by the ordinance's abridgement of the patrons'
fundamental right of privacy. [d. at 869.
185. 630 F.2d 1029 (5th Cir. 1980).
186. "Space Invaders" is a type of trademarked, electronic, coin-operated game. Of
course, the broader issue was whether playing such games is a fundamental right.
187. The ordinance was actually reenacted after the city leaders changed their minds
about repealing an earlier version because of a concern that plaintiff had connections with
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held that the ordinance violated the due process clause. 189 Initially
assuming that the rational basis test was the appropriate standard,
the court first identified two legitimate public purposes within the
contemplation of the police power: the prevention of truancy and
exposure to corrupting influences. Second, the court analyzed the
under-seventeen ban to determine whether this regulation rationally served these two legitimate purposes. The absolute ban on all
persons under seventeen including those not obliged to attend
schooP90 was held to be "patently irrational."19l Therefore, the ordinance satisfied the test for irrationality: " 'patently 'useless in the
service of any goal apart from whim or favoritism.' "192 The complete bar included after school hours. and non school days. The
court was convinced that the community leaders' disapproval of
such activities was so served but not the interest in preventing truancy.193 The record was "entirely devoid of evidence" that persons
under seventeen years of age were exposed to corrupt influences at
such establishments. 194 The defendant city thus had failed to
demonstrate any particular need for the absolute ban. The court
reasoned that corrupt individuals were drawn to such amusement
centers not by the machines but by the gathering of potential
young victims. The ordinance would not prevent exposure to corrupting influences since they would follow the youthsto other congregating sites. Only a complete ban on all youthful congregation
would frustrate the undesirables' efforts at youth corruption.
organized crime. The dealings between the plaintiff and the defendant city are detailed in'
the court's. opinion. [d. at 1032-35. The court suggested that "there are limits on the powers
of 'municipalities to induce businessmen to expend vast sums of money, then, without any
changed circumstances, to enact legislation which destroys the value of that expenditure."
[d. at 1044. The court concluded with an erudite discourse on the role of government vis-avis individual autonomy which reads like a constitutional sermon to government officials on
"the right to be let alone- the most comprehensive of rightll and the right most valued by
civilized men." [d. at 1046 (emphasis deleted) (quoting Olmstead v. United States, 277 U.S.
438; 478 (1928) (Brandeis, J., dissenting».
188. See Aladdin's Castle, Inc. v. City of Mesquite, 434 F. Supp. 473 (N.D. Tex. 1977).
189. The court concluded that due process was denied under the United States and
Texas Constitutions. U.S. CONST. amend. XIV; TEX. CON ST. art. I, § 19. The analysis was the
same under both. 630 F.2d at 1039-40 n.14.
190. See TEX. EDUC. CODE ANN. §§ 21.032-.033 (Vernon 1972 & Supp. 1980).
191. 630 F.2d at 1039.
192. [d. (quoting Michelman, Politics and Values or What's Really Wrong with'Rationality Review? 13 CREIGHTON L. REV. 487, 499 (1979».
193: This analysis is somewhat analogous to the requirement of least restrictive means
to effect a legitimate purpose which applies to fundamental rights. See Shelton v. Tucker,
364 U.S. 479, 488 (1960).
194.630 F.2d at 1040.
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The court continued that "[e]ven if the challenged ordinance
had a rational basis and a legitimate purpose, we would nevertheless be compelled to strike it down."19& A right of association in
such a social context as was involved in the case, among the youths .
themselves and not between malefactor and youth, was distilled
from Supreme Court196 and Fifth Circuit precedent. 197 Although
ihe ordinance was aimed at "nonassociational evils," because it affected a fundamental right, the ordinance would have had to serve .
a compelling state interest by the narrowest means which mini;,.
mized the interference with the protected activity.198 The court
recognized a legitimate state interest in protecting youths from.
"unhealthy influences" even by regulating constitutionally protected conduct. 199 The broader state interest in protecting children, however, applies only when the "special circumstance of
youth creates a unique danger to minors which presents the state
with an interest in regulating their activities that does not exist in
the case of adults."20o Three reasons mandating such a state inter-.
est were identified: (1) the peculiar vulnerability of children; (2)
the inability of children- to exercise mature judgment in a critical
decision; and (3) the importance of preserving the parental role in
child-rearing. 201 As tothe first reason there was no peculiar vulnerability, in the sense of a physical, mental or moral threat,
presented by coin-operated amusement. To merely suggest that
minors were free to express their views in school on controversial
public issues202 and to secure abortions without parental consent203
but not free to decide whether to drop a quarter in a slot was
enough for the court to overcome the second reason. The third reason worked against the ordinance because such a decision was for
parents, and parents who allowed their children coin-operated
195. Id. at 1041.
196. Id. (citing Gilmore v. City of Montgomery, 417 U.S. 556, 575 (1974), wherein was
quoted Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 179-80 (1972) (Douglas J., dissenting».
197. 630 F.2d at 1042 (citing Sawyer v. Sandstrom, 615 F.2d 316 (5th Cir. 1980) and
Robinson v. Reed, 566 F.2d 911 (5th Cir. 1978».
198. Having concluded that the ordinance was without a rational basis the outcome
under the strict scrutiny test was preordained. See text accompanying notes 190-194 supra.
199. 630 F.2d at 1042. That children's rights were involved did not alone diminish the
constitutional protection involved. Rather, the state's interest was heightened. See generally
Developments in the Law-The Constitution and the Family, 93 HARv. L. REV. 1156, 135877 (1980).
200. 630 F.2d at 1042.
201. Id. at 1043 (citing Bellotti v. Baird, 443 U.S. 622, 634 (1979) (plurality opinion».
202. Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969).
203. Planned Parenthood v. Danforth, 428 U.S. 52 (1976).
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amusement were burdened by the accompaniment provision. There
was therefore no compelling state interest to justify the ordinance's
interference in youths' free association. 204 The ordinance also
swept too broadly, for children could be shielded from undesirable
influences by less drastic means such as criminalizing the illicit
conduct and its solicitation. 2011 Substantive due process was denied.
PROCEDURAL DUE PROCESS
Survey decisions in procedural due process tracked familiar
paths. Several particular applications, however, are worth noting
here. Government, state or federal, may not deprive "any person of
life, liberty or property without due process of law."206 Procedural
due process simply is fair procedure, i.e., what "process" is "due."
Unlike substantive due process and other substantive constitutional guarantees, the judicial evaluation focuses on the decisionmaking process wholly apart from the fairness of the underlying
rule being applied. The procedural due process protection has two
components. The court must first determine when government has
deprived an individual of "life, liberty or property," and, second,
determine whether the process afforded in the deprivation was
adequate.
A person's "liberty" includes the full range of activity and autonomy afforded constitutional protection. "[T]o determine
whether due process requirements apply in the first place ... [the
court] must look not to the 'weight' but to the nature of the interest at stake . . . to see if the interest is within the Fourteenth
Amendment's protection."207 The nature of the interest is the complete creation of the state. Because a state practice, regulation, rule
or statute is unlikely to label the interest "liberty," the court must
further focus on the substances of the state action. During the survey period the court concentrated on several examples. A plaintiff's
allegation that his daughter and son-in-law secured his involuntary
commitment at a mental hospital implicated a liberty interest in
freedom from physical restraint.208 A teacher may have· a liberty
204. 630 F.2d at 1042-44.
205. [d. at 1042.
206. U.S. CONST. amends. V & XIV, § 1.
207. Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816,
841 (1977) (emphasis in original) (quoting Board of Regents v. Roth, 408 U.S. 564, 570-71
(1972)).
208. Dahl v. Akin, 630 F.2d 277, 279 (5th Cir. 1980), cert. denied, 101 S. Ct. 1977
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interest in his standing in the community and in being free from
the stigma or disability caused by a school board's public criticism
and false information contained in a reprimand letter.209 A parent's
liberty interest in family integrity and autonomy was recognized in
a child dependency proceeding which would transfer custody to
the state until terminated by the court or the child reached the age
of eighteen. 2lO Even in an environment of diminished liberty, visitation rights once given to convicted prisoners could not be withheld as punishment without procedural due process, and pretrial
detainees had a liberty interest in guaranteed reasonable visitation
privileges. 211 Likewise, once a state created a parole system for its
prisoners, even such a limited liberty must be guarded by procedural due process. 212
One of the most difficult problems in the procedural due process area is defining "liberty" and "property." Traditional forms of
real and personal property clearly are within the constitutional notion of property; difficult assessments must be made, however, for
less tangible forms such as government benefits and employment.
The framework for analysis is that there must be more than an
abstract desire or a unilateral expectation; property is a legitimate
claim of entitlement not created by the Constitution but stemming
from some independent source. 218 Decisions during the survey period provide a flavor of the concept of property for due process
purposes. A conflict between the plaintiffs' claim to an unencumbered title and a town's arguable easement created in plaintiffs a
significant property interest.214 A widow's community property interest in a vehicle forfeited because it was used in her husband's
unlawful transactions entitled her to procedural due process.21& A
former AFDC recipient had a property interest in past-due support
(1981). See also Addington v. Texas, 441 U.S. 418 (1979).
209. Swilley v. Alexander, 629 F.2d 1018, 1022 (5th Cir. 1980).
210. Davis v. Page, 640 F.2d 599, 602 (5th Cir. 1981) (en bane). See also Cleveland Bd.
of Educ. v. LaFleur, 414 U.S. 632 (1974); Wisconsin v. Yoder, 406 U.S. 205 (1972).
211. Jones v. Diamond, 636 F.2d 1364, 1377 n.12 (5th Cir. 1981) (en bane). See also
Bell v. Wolfish, 441 U.S. 520 (1979); Wolff v. McDonnell, 418 U.S. 539 (1974).
212. Parker v. Cook, 642 F.2d 865, 867-68 (5th Cir. 1981). See also Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1 (1979); Morrissey v. Brewer,
408 U.S. 471 (1972).
213. See Board of Regents v. Roth, 408 U.S. 564 (1972).
214. McCulloch v. Glasgow, 620 F.2d 47, 50 (5th Cir. 1980).
215. United States v. One 1977 Cherokee Jeep, 639 F.2d 212, 213 (5th Cir. 1981). See
also Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974) (upheld application of
forfeiture statutes to innnocent owners).
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obligations collected after termination of benefits.2IG A father involuntarily committed by his daughter was deprived of property by
her commitment action and guardianship appointment over his
property.217 Without alleging "any 'independent source stich as
state statutes or [other] rules,' " a high school student did not have
a property interest in .a particular program of college preparatory
courses she merely. desired. 218
Property claims often· arise in the context of public employment. The property interest involved is in continued employment.
This area points out the federalism tensions involved: "While the
State may define what is and what is not property, once having
defined those rights the Constitution defines due process . . . . "218
As in any other property interest, the legitimate claim to continued
employment must be derived from a source independent of the
fourteenth amendment, such as contract or federal, state or local
law. 220 Thus, the "creative mechanism" itself defines and limits the
property interest. 221 For example, the creative mechanism may define the employment as being at will or as being terminable only
for cause; the former will not but the latter will create a property
interest. 222 Within the public employment context, the issue of
whether a property interest exists in continued employment is entirely fact-bound.
Marrero v. City of Hialeah 228 was the most significant survey
decision defining liberty and property.224 Municipal police officers
and a local prosecutor executed a warrant authorizing a search for
stolen items in a jewelry store owned and operated by the plaintiffs. After the initial searchers could not identify any of the items
listed on the warrant, several victims of recent local robberies were
216. See Seagraves v. Harris, 629 F.2d 385 (5th Cir. 1980).
217. Dahl v. Akin, 630 F.2d 277, 279 (5th Cir. 1980), cert. denied, 101 S. Ct. 1977
(1981).
218. Arundar v. Dekalb County School Dist., 620 F.!!d 493, 494 (5th Cir. 1980). See
also Goss v. Lopez, 419 U.S. 565,572-73 (1975).
219. Thompson v. Bass, 616 F.2d 1259, 1265 (5th Cir.), cert. denied, 101 S. Ct. 399
, (1980) (quoting Arnett v. Kennedy, 416 U.S. 134, 185 (1974) (White, J., concurring in part
and dissenting in part)).
220. McMillian v. Hazelhurst, 620 F.2d 484, 485 (5th Cir. 1980). But see Bell v. Wolfish, 441 U.S. 520, 580 (1979) (Stevens, J~, dissenting).
221. American Fed. of Gov't Emp. v. Stetson, 640 F.2d 642, 645 (5th Cir. 1981).
222. Thompson v. Bass, 616 F.2d 1259, 1265 (5th Cir. 1980).
223. 625 F.2d 499 (5th Cir. 1980).
224. Because the focus of this article is on procedl,ral due process in noncriminal
cases, deprivations of life, liberty and property as criminal sanctions are not considered
here.
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brought to the store. Only one victim identified one bracelet as
stolen, whereupon the plaintiffs were arrested for receipt of stolen
property and almost the entire stock of the store was seized. All
the local television stations covered these events, and the prosecutor announced to the media that $75,000 in stolen jewelry had been
seized along with the plaintiffs. Soon after the raid the police department announced on local radio and in local newspapers that
much stolen property had been recovered and· that all recent robbery victims should come to the police station to claim jewelry
they could identify. A state court judge granted plaintiffs' motion
to suppress and returned all of the seized inventory except the one
bracelet. Plaintiffs subsequently sued the city and prosecutor· for
willfully and knowingly violating the fourth and fourteenth amendments. They alleged that their business and personal reputations
were destroyed and that they had been deprived of their right to
earn a livelihood without due process of law. The key issue was
whether the claim of injury to plaintiffs' personal and business reputations was a deprivation of a liberty or property interest protected by the Constitution. 2211
The court's consideration of the question began with an interpretation of Paul v. Davis,226 the seminal Supreme Court precedent. The police had included Davis's name and photograph in a
flyer circulated to eight hundred local merchants identifying him
as an "active shoplifter." Davis had been charged with shoplifting
more than a year earlier and had not been tried when the flyer
circulated; shortly thereafter the charge was dismissed. Davis sued
and asserted that his future employm.ent opportunities and his
. shopping with local merchants were impaired. The Supreme Court,
however, held that Davis's interest in his "reputation alone" was
neither liberty nor property sufficient to invoke the procedural
guarantees of the fourteenth amendment.227 The Marrero court
emphasized the two-tiered analysis applied by the Supreme Court
in Paul v. Davis. First, the Supreme Court held that reputation
standing alone was not a liberty interest created by federallaw. 226
Rather, a federally recognized liberty interest included only a
stigma to one's reputation incident to either some specific constitu225. 625 F.2d at 512-19.
226. 424 U.S. 693 (1976).
227. [d. at 712.
228. 625 F.2d at 512 (citing 424 U.S. at 700-02).
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tional guarantee or some "more tangible" deprivation. 229 Second,
the Supreme Court held that under the applicable state law, reputation was not a liberty or a property interest. Therefore, any injury inflicted by the police flyer could not constitute an unconstitutional state deprivation of that interest. 23o As interpreted in
Marrero, the narrow holding of Paul v. Davis was that "no liberty
or property interest is infringed when the only loss suffered at the
hands of the government is damage to personal reputation if personal reputation is not recognized by the relevant state law as a
liberty or property interest."231 Given this narrow reading, Paul v.
Davis became a precedent for a fourfold distinction in Marrero: (1)
the Marrero plaintiffs alleged that an unconstitutional search and
seizure violative of the fourth amendment caused injury to their
personal and business reputations directly implicating a constitutionally created liberty;232 (2) applicable Florida law recognized
business reputation or goodwill as a tangible legal guarantee of
present enjoyment which was a state law-c:reated property interest;233 (3) the alleged defamatory statements resulted in injury to
both the Marrero plaintiffs' personal and business reputations, and
to the protected property interest in goodwill;234 (4) the alleged defamatory statements resulted in injury to both the Marrero plaintiffs' personal and business reputations plus a more tangible injury
arising out of the allegedly unconstitutional search and seizure. 2311
The court thus pointed the way around Paul v. Davis.
Once it is determined that an\interest of constitutional magnitude is involved, a person may be legally deprived of that interest
only by government action which provides due process. Determining just what process is due is an exercise in situational ethics on
the constitutional level. The Supreme Court has determined that
the specific dictates of due process are de~ermined in any given
case by considering three factors: (1) "the private interest that will
be affected by the official action"; (2) "the risk of an erroneous
deprivation of such interest through the procedures used, and the
229. 625 F.2d at 513. This is the so-called "stigma plus" approach. See id. n.17.
230. [d. at 513 (citing 424 U.S. at 711-12). The Kentucky law of tort protected Davis's
interest in reputation. 424 U.S. at 711-12.
231. 625 F.2d at 513 (emphasis in original).
232. The damage to reputation was thus seen as an element of the damages from the
invalid search. [d. at 513-14.
233. [d. at 514-15.
234. [d. at 515-16.
235. [d.
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probable value, if any, of additional or substitute procedural safeguards"; and (3) "the Government's interest, including the function involved and the fiscal and adminitrative burdens that the additional or substitute procedural requirement would entail."236
For a short while the most noteworthy procedural due process
development during the survey period came in Davis v. Page/a3? On
rehearing en bane, the majority238 held that in a state adjudication
of child dependency involving the possibility of prolonged and indefinite deprivation of parental custody due process required that
"an indigent parent be offered counsel and that counsel be provided unless a knowing and intelligent waiver is made."239 A postsurvey Supreme Court decision has replaced this absolute rule with
the more traditional case-by-case due process approach. 240
FIRST AMENDMENT
Overbreadth, Vagueness, and Least Restrictive Means
Three general principles of first amendment jurisprudence, the
doctrines of overbreadth, vagueness and least restrictive means,
236. Mathews v. Eldridge, 424 U.S. 319, 335 (1976): See also Mackey v. Montrym, 443
U.S. 1 (1979); Dixon v. Love, 431 U.S. 105 (1977).
.
237. ·640 F.2d 599 (5th Cir. 1981) (en banc).
238. A thirteen-judge majority was opposed by an eleven-judge minority which joined
in Judge Brown's dissenting opinion. [d. at 605 (Brown, J., dissenting).
239. [d. at 604. Compare Rowell v. Ortelere, 626 F.2d 437 (5th Cir. 1980) (routine
private litigation between parents over child custody did not require appointment of counsel
for indigent parent).
240. The en banc court's course marked an abrupt departure from Supreme Court
decisional law. The Supreme Court has often observed that the "right to be heard would be,
in many cases, of little avail if it did not comprehend the right to be heard by counsel."
Goldberg v. Kelly, 397 U.S. 254, 268-70 (1970) (quoting Powell v. Alabama, 287 U.S. 45, 6869 (1932». Yet the high Court had never applied a per se rule of procedural due process to
require appointment of counsel for indigents in noncriminal proceedings. Instead, in noncriminal procedural due process the determination whether to appoint counsel for an indigent was left to a case-by-case analysis. Wolff v. McDonnell, 418 U.S. 539. (1974); Boldberg
v. Kelly, 397 U.S. 254 (1970).
The en bane court's novel approach, however, was short-lived. One month after the
survey period ended, Davis was effectively overruled when the Supreme Court decided
Lassiter v. Department of Social Services, 101 S. Ct. 2153 (1981). Applying the three factors
described above for evaluating what process is due and the same analysis the en bane court
had used in Davis the Supreme Court reached the opposite conclusion and rejected an absolute right to appointed counsel in parental status termination proceedings in favor of a caseby-case decision by the trial court subject to appellate review. The Supreme Court reasoned
that a presumption arose that an indigent litigant was entitled to appointed counsel only
when, if defeated, the litigant would be deprived of physical liberty.
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drew the court's attention during the survey period. Closely related, the three doctrines are often considered together in deciding
a first amendment case and distinctions among the three are some-·
times blurred.
In Shamloo v. Mississippi State Board of Trustees,z.u Iranian
students who had been subjected to disciplinary action by a state
university for participating in demonstrations supporting the new
government in their country challenged the university's regulations
governing demonstrations. The relevant university regulation provided for approval of "activities of a wholesome nature."Z42 The
court held the requirement that an activity be "wholesome" before
it was subject to approval was unconstitutionally vague. First, different university officials could and did attach different meanings
to the words which allowed for arbitrary and discriminatory application. 243 Second, the regulation was not specific enough to give
fair warning; a college student would have much difficulty in determining whether a proposed activity was prohibited, unwholesome
.
·conduct. u4
The sec~nd noteworthy overbreadth and vagueness decision
was Reeves v. McConn.z411 A municipal ordinance regulating operation of sound amplification equipment was challenged as being
overbroad and vague. 246 ·At the outset the court noted important
241. 620 F.2d 516 (5th Cir. 1980).
242. [d. at' 519.
. .
243 .. [d. at 523-24.
244. [d. The approach the court adopted' in evaluating university regulations was to
consider "whether the college students would have any 'difficulty in understanding what
conduct the regulations allow and what conduct they prohibit.' " [d. at 524 (emphasis added) (quoting Jenkins v. Louisiana State Bd. of Educ., 506 F.2d 992, 1004 (5th Cir. 1975)).
245. 631 F;2d 377 (5th Cir. 1980).
.
.
246. The operative part of the ordimince provided:
(b) The use of Bound amplification equipment outside of buildings, or other enclosed structures within the city, except on residential property, is subject to the following regulations:
(1) The operation of sound amplifying equipment is prohibited Monday through
Saturday within the downtown business district. A permit must be obtained for the
operation of such equipment in these areas on Sunduys. Any such Sunday permit
shall state the business district to which same applies und shall be valid for only one
day. Each separate Sunday must have a separate permit. Provided, however, that the
provisions of this section shall not apply to parade permits which have been obtained
from city council.
.
(2) The operation of sound amplifying equipment is prohibited between the hours
of 7:00 p.m. and 10:00 a.m. daily, and further prohibited on Sunday between 10:00
a.m. and 1:00 p.m.
(3) . The sounds amplified shall not be obscene or slanderous.
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limits on the two doctrines. Only if the challenged portion of the
ordinance would not allow a limiting, constitutional construction
and the alleged overbreadth was both real and substantial would
the particular provision be held invalid. The general due processvagueness standard was heightened, and the statute more strictly
construed, since the alleged inhibition was in the domain of free
speech.2.7 With these two notions in mind, the court considered
each specific provision of the challenged ordinance.
The city argued two justifications for the subparagraph 1 prohibition of all sound amplification in the downtown business ·district except for certain hours on Sunday: first, the law would prevent disruption of normal business activity and, second, it would
prevent unsafe distractions for pedestrians and drivers. The court
held the subparagraph overly broad because there was "probably
no more appropriate place for reasonably amplified free speech,"
and the two proper ends could be served by a more tailored ordinance. us Thus, subparagraph 1 unnecessarily reached protected
speech. Subparagraph 2 prohibited all sound amplification between
7:00 p.m. and 10:00 a.m. and between 10:00 a.m. and 1:00 p.m. on
Sundays. The city urged this was a reasonable <regulation for "preserving the tranquility of Sunday morning for religious services
and of the evening, night, and early morning hours for rest, q~iet
(4) The sound amplifying equipment on a sound truck shall not be operated unless
the truck is moving at a speed of at least ten (10) miles per hour, except when the
sound truck is stopped or impeded by traffic. When the sound truck is stopped by
traffic, the sound amplifying equipment shaH not be operated for longer than one
minute at each such stop.
(5) The operation of sound amplifying equipment is prohibited within one hundred
(100) yards of any hospital, school, Church or courthouse.
(6) The volume of sound amplified shaH be controHed so that it is not u~reasonably
loud, raucous, jarring, disturbing or a nuisance to persons within the area of
audibility.
(7) No sound amplifying equipment shaH be oPElratedwith an excess of twenty (20)
watts of power in the last stage of amplification.
.
In May 1978, the City Council made the foHowing addition to subparagraph 5:
(5) The operation of sound amplifying equipment is prohibited ... within fifty (50)
yards of any public' or private residential structure. For the purposes of this ordinance, "public or private residential structure" shaH mean any structure wherein a
person or persons reside, either temporarily or permanently, including but not limited
to single family and multi-family residences, apartments, duplexes, condominiums,
motels, hotels, boarding houses, and rooming houses.
[d. at 380 n.l (quoting HOUSTON, TEX., CODE OF ORDINANCES § 29-6 (1976)).
247. 631 F.2d at 383 (citing Hynes v. Mayor and City Council of OradeH, 425 U.S. 610
(1976)).
248. 631 F.2d at 384.
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reflection, and family togetherness."24& The government's interest
in protecting individuals' rights to home privacy, however, is
greatly diminished when the individual goes to public places. 2l1o
Because the city failed to narrow the regulation as to situs or time,
the prohibition was overbroad in its reach. 2111 Subparagraph 5 of
the ordinance prohibited sound amplification within a certain distance of residences, schools, courthouses, hospitals and churches.
Unlike subparagraph 2, location was the sole criterion and time
was not considered. While the court recognized a state interest in
preserving privacy and efficiency of operation, the provision swept
too broadly by including protected activity which took place at a
time or in a manner which did not interfere with the character of
the particular interest sought to be statut6rily safeguarded. 2112
Subparagraphs 4, 6, and 7, which required sound trucks to
move at a speed of at least ten miles per hour unless stopped in
traffic and to cease broadcasting one minute after stopping, also
were held overbroad because they reached beyond that which actually created or imminently threatened· disruption or traffic hazards.
Subparagraph 6 required the volume of sound amplification to be
controlled so as not to be "unreasonably loud, raucous, jarring, disturbing, or a nuisance to persons within the area of audibility."
The court easily approved against a claim of vagueness the terms
"unreasonably," "nuisance," "loud," "raucous" and "Jarring" because, although abstract, the terms "have through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden."2113 The remaining
language in the subsection, "disturbing . . . to persons within the
area of audibility," was upheld only with the expectation that a
state court would interpret the term objectively to mean "actual or
imminent interference with ... 'peace or good order.' "2114 Subparagraph 7 established a maximum wattage. The district court invalidated this provision because a regulation keyed to decibels at the
point of hearing would have been a more precise measure of disruptiveness. While agreeing that the decibel measure was a less restrictive means of regulation, the Fifth Circuit noted that the rec249.
250.
403 U.S.
251.
252.
253.
254.
[d.
See Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Cohen v. California,
15 (1971).
631 F.2d at 384-85.
[d. at 385.
Id. at 386 (citing Kovacs v. Cooper, 336 U.S. 77, 79 (1949)).
631 F.2d at 386 (citing Grayned v. Rockford, 408 U.S. 104, 109-12 (1972)).
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ord disclosed that the small gain in precision was more than offset
by administrative inconvenience in enforcement. Administrative
convenience was recognized as a relevant consideration in judging
the reasonableness of the regulation. The court did strike the provision, however, as being overbroad in that the record indicated
sound amplified in excess of the watt limit was not necessarily
disruptive.
Subparagraph 3 prohibited the amplification of the "obscene
or slanderous." The court held the obscenity provision not unconstitutionally overbroad, drawing an analogy to the broadcast media
for which the Supreme Court has tolerated closer regulation. zlIlI
Nor was the provisi~n vague. ZlI8 The term "slanderous" in subparagraph 3 was deemed both vague and overbroad because a speaker
would be in doubt whether speech about public figures and officials
would be protected. 2117
The third related decision was Aladdin's Castle, Inc. v. City of
Mesquite. 2118 The ordinance, which restricted operation of coin-slot
amusement devices, was deemed vague, overbroad and not the
least restrictive means. The ordinance, inter alia, permitted the
police chief to make a licensing denial recommendation based on
an applicant's "connections with criminal elements."2I1B Because
the nature of the improper association was unspecified and the officials were given no guidance in deciding the quality or quantity of
negative relationships, the ordinance failed the vagueness test. 280
Because such an ordinance attached serious consequences which
would deter protected associations, the ordinance was overbroad as
well.281 Finally, the ordinance failed the less-drastic-means test because nonassociational conduct regulations could serve the purpose
of assuring that proper and suitable persons operated such
establishments. 28z
255. See FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
256. See Hamling v. United States, 418 U.S. 87, 110-14 (1974).
257. See Gerty v. Robert Welch, Inc., 418 U.S. 323 (1974).
258. 630 F.2d 1029 (5th Cir. 1980). See text accompanying notes 185-205 supra.
259. [d. at 1034 n.6 (quoting Mesquite, Tex., Ordinance 1103).
260. 630 F.2d at 1037-38. See Lanzetta v. New Jersey, 306 U.S. 451 (1939), in which a
vague reference to "member of any gang" was held unconstitutional.
261. See Sawyer v. Sandstrom, 615 F.2d 311, 316 (5th Cir. 1980) ("right to freely associate is not limited to those associations which are 'political in the customary sense' but
includes those which 'pertain to the social, legal and economic benefit' ").
262. 630 F.2d at 1042.
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Government Employment
The Supreme Court has recognized that the government's interest in regulating the first amendment activity of its employees is
different from the regulation of citizens generally. Ordinarily, the
government as an employer may not coerce its employees to compromise their beliefs or place otherwise unconstitutional conditions
upon government employment. The government employee, however, does not enjoy an absolute protection which outweighs any
government interest. 16s
In Williams u. Board of Regents,l" a university police officer
alleged that he had been dismissed impermissibly following his disclosure of an alteration of a university accident report made to
protect a local official. The defendants sought to establish a Pickering defense l6G of the necessity for maintaining discipline and harmony in such a quasi-military organization.166 The court recognized a need for police discipline approaching its importance in the
militaryl67 and appreciated the resultant disruption and disharmony such a disclosure would bring. While the aegis of the first
amendment is not dependent upon the "social worth" of the expression,166 the nature of the speech is considered relevant to the
263. See generally Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Perry v.
Sindermann, 408 U.S. 593 (1972); Pickering v. Board of Educ., 391 U.S. 563 (1968).
264. 629 F.2d 993 (5th Cir. 1980).
265. In Pickering v. Board of Educ., 391 U.S. 563 (1968), the Supreme Court struck a
balance between the interest of the citizen-employee in the exercise of a constitutional right
and the interest of the goverment-employer in efficiently accomplishing public service
through its employees. When the citizen-employee's interest is fundamental, government
interests to be balanced include: (1) the need for maintaining discipline by immediate
superiors or harmony among coworkers; (2) the employee's position necessitates "personal
loyalty and confidence"; (3) the need for confidentiality is great; (4) the activity impedes the
employee's proper performance; (5) the government's difficulty of effectively countering
false accusations; (6) the statements are so without foundation as to call into question the
employee's competence; (7) the appropriateness of the time, manner and place of the activity; and (8) the public's interest in having the challenged activity performed. An employee
of the government establishes a constitutional violation by meeting three requirements.
First, the activity involved was constitutionally protected. Second, the activity involved was
a substantial factor in the government's decision to impose a sanction. Third, the same
sanction would not have been imposed, in any event, had the activity involved not occurred.
266. The district court had ruled, as a matter of law, that the defense was unavailable
and the evidence, therefore, inadmissible. FED. R. EVID. 401. 629 F.2d at 1002. The Fifth
Circuit consistently has recognized such a defense when supported in the record. See, e.g.,
Lindsey v. Board of Regents, 607 F.2d 672 (5th Cir. 1979); Garza v. Rodriguez, 559 F.2d 259
(5th Cir. 1977); Abbot v. Thetford, 534 F.2d 1101 (5th Cir. 1976) (en banc).
267. See Parker v. Levy, 417 U.S. 733 (1974).
268. See Chicago v. Mosley, 408 U.S. 92, 96 (1972); Stanley v. Georgia, 394 U.S. 557,
564 (1969).
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Pickering balance. 289 Because the falsification of the document involved a betrayal of public trust and because the plaintiff, as the
officer on duty was himself implicated, the Pickering defense was
not available to frustrate the claim of an innocent and perhaps
praiseworthy· employee. The balance was struck in favor of the.
plaintiff employee.
In Van Ooteghem u. Gray,270 the plaintiff was an assistant
county treasurer who was dismissed because of a dispute over his
decision to address the county commissioner's court on the subject
of civil rights of homosexuals. On appeal the majority considered
, the Pickering baiance to have been refined to require a compelling
state interest for the government-employer's regulation of an employee's protected speech.271 Under this approach, the governmentemployer would have to establish that the regulation of speech was
necessary to avoid a material and substantial interference with the
government operation. The imposition of a restricted work schedule which led to the employee's dismissal was not so justified. The
only disturbance resuliing from plaintiff's outspokenness was some
distress among his co-workers which was deemed insignificant. Because the plaintiff's protected speech· was a substantial factor in
his dismissal, the balance in favor of the employee meant his claim
was valid. 272
The special concurring opinion questioned the majority's conclusion that Pickering had been refined into a compelling state interest standard. 273 Instead, the distinction was made between, on
the one hand, restraints on public employees' rights of belief and
association which required a compelling state interest and, on the
other hand, restraints on public employees' rights to free speech
which required a Pickering balancing. 274 Such an approach was
deemed more consistent with Supreme Court precedent,2711 prop269. 629 F.2d at 1003.
270. 628 F.2d 488 (5th Cir. 1980), cert. dismissed, 101 S. Ct. 203 (1981).
271. Id. at 492-93.
272. A dismissal substantially based on protected activity will go unremedied unless
. there is proof that "but for" the protected activity the dismissal would not have occurred.
Id. at 493 (citing Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977».
273. 628 F.2d at 497-500 (Reavely, J., specially concurring). See also Bickel v. Burkhart, 632 F.2d 1251, 1255 n.8 (5th Cir. 1980).1
274. 628 F.2d at 498-99.
275. Id. at 498 (distinguishing Branti v. Finkel, 445 U.S. 507 (1980), Elrod v. Burns,
427 U.S. 347 (1976) and Buckley v. Valeo, 424 U.S. 1 (1976) from Givhan v. Western Line
Conso!. School Dist., 439 U.S. 410 (1979), Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274
(1977), and Pickering v. Board of Educ., 391 U.S. 563 (1968».
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erly cognizant of a constitutional hierarchy of first amendment·
rights,276 and as not imposing a nearly insul'mountable burden on
the government as employer. It remains to be seen whether future
Pickering-type speech issues will be decided under the compelling
state interest requirement or the balancing approach.277
In Davis v. Williams 278 and Bickel v. Burkhart,279 the court,
sitting en banc and in panel, upheld the facial validity and application·of fire department rules which regulated the free speech of fire
fighters. 28o At issue was a so-called "catch-all" provision which prohibited public employees from engaging in conduct prejudicial to
good order. In Davis the en banc court appli~~d a Pickering balance
to conclude that the regulation did not unconstitutionally intrude
on protected first amendment activity on its way to upholding its
facial validity.281 In Bickel the panel concluded that a claim could
be predicated on employer action short of termination such as a
denial of promotion. 282 Easily satisfied were the requirements that
the alleged protected activity was a substantial and motivating factor in the challenged denial and the employee would have been
promoted "but for" his speech. In Bickel the employee had been
critical of the department at a meeting with the fire chief and the
fire chiefs superior, raising the government's need for harmony
and discipline. Because the speech, set in time, place and manner
context, was consistent with the purpose of the meeting, to air
grievances, it was deemed constitutionally protected. The court
thus recognized that private as well as public speech of government employees was protected. 28s
276. According to the concurring judge, the rights of belief and association are "the
most preferred of .the preferred rights" and do not have the potential for interference that
speech has in the employment context. 628 F.2d at 499.
277. Acknowledging the "existence of some dispute," a subsequent panel did not need
to decide which was the correct standard. Bickel v. Burkhart, 632 F.2d 1251, 1256 n.8 (5th
Cir. 1980) (speech satisfied both standards). Seemingly the rule of interpanel accord would
require later decisions to follow the Van Ooteghem majority. See Baker, Precedent Times
Three: Stare Decisis in the Divided Filth Circuit, 35 S. W.L.J. 687, 720-24 (1981). Initial
indications suggest, however, that the distinction has gone unnoticed and the balancing approach has been applied in speech cases. See, e.g., Smalley v. Eatonville, 640 Jt'.2d 765 (5th
Cir. 1981); Williams V. Board of Regents, 629 F.2d 993 (5th Cir. 1980).
278. 617 F.2d 1100 (5th Cir. 1980) (en bane), cert. denied, 449 U.S. 937 (1981).
279. 632 F.2d 1251 (5th Cir. 1980).
280. While the regulations were from different departments, they were identical. Id. at
1254-55.
281. 617 F.2d at 1102 n.2 & 1104-05.
282. 632 F.2d at 1255 n.6. See also Stone V. Board of Regents, 620 F.2d 526 (5th Cir.
1980).
283. 632 F.2d at 1256 (citing Givhan V. Western Line Consol. School Dist., 439 U.S.
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During the survey period the court decided another Pickeringtype case in the important subcategory of patronage, which was
recently described by the Supreme Court.284 Five former deputies
sued the county sheriff and alleged that patronage unconstitutionally motivated their discharge in Tanner v. McCall. l86 The case did
not involve either the wholesale discharge of out-party employees·
or the dismissal of such employees who were without in-party
sponsorship.188 Instead, party affiliation was only tangentially relevant. Plaintiffs alleged that they were not reappointed either because of their support for the defeated incumbent or because the
newly-elected sheriff wished to hire his own political supporters.
The plaintiffs' proof was found wanting because the facts did not
support their claim that retention or appointment coincided with
support and loyalty for an individual politician rather than a political party.187 Because· the evidence did not support plaintiffs'
claim, the court did not have to decide the extent to which the
Constitution protected against such requirements of loyalty to an
individual. 288
410 (1979». See also Janusaitis v. Middlebury Volunteer Fire Dept., 607 F.2d 17 (2d Cir.
1979).
284. See generally The Supreme Court, 1975 Term, 90 HARv. L. REV. 56, 186-96
(1976). The patronage decisions have been somewhat controversial. See generally Loughney
v. Hickey, 635 F.2d 1063, 1064 (3d Cir. 1980) (Aldisert, J., concurring).
285. 625 F.2d 1183 (5th Cir. 1980), cert. denied, 101 S. Ct. 1975 (1981).
286. The court thereby distinguished Elrod v. Burns, 427 U.S. 347 (1976) and Branti
v. Finkel, 445 U.S. 507 (1980). In Elrod the Supreme Court had applied the Pickering analysis to partisan dismissals of sheriffs' office employees and required a compelling state interest to outweigh the employees' associational rights:
[I]f conditioning the retention of public employment on the employee's support of
the in-party is to survive consitutional challenge, it must further some vital government end by a means that is least restrictive of freedom of belief and association in
achieving that end, and the benefit gained must outweigh the loas of constitutionally
protected rights.
427 U.S. at 363 (footnote omitted). In Branti the Supreme Court found unconstitutional a
planned termination of assistant public defenders solely because they had not been sponsored by the in-party. However, an exception was noted: U[I]f an employee's private political
beliefs would interfere with the discharge of his public duties, his First Amendment rightS
may be required to yield to the State's vital interest in maintaining governmental effectiveness and efficiency." 445 U.S. at 517.
287. U[T]he objective manifestations [did] not supply inferences that rise to the level
of proof of a subjective intent of political animus." 625 F.2d at 1193. It was clear to the
court that the same decision would have been made regardless of the plaintiff's constitutionally protected conduct. [d. at 1190-96.
288. [d. at 1190. See Ashwander v. TVA, 297 U.S. 288, 346-48 (1936) (Brandeis, J.,
concurring).
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Defamation
Since the Supreme Court has brought the law of defamation
within the scope of the Constitution when the defamed person is a
public official289 or an all-purpose public figure 290 or a limited-purpose public figure,291 libel and slander actions have an important
first amendment dimension. During the survey period the court
considered the various defendant categories and the concomitant
degree of first amendment protection of the defamer.
No survey decision involved a plaintiff who was a public official, although public figures were involved in several cases. Because
"the question of public figure status is pervasive," the court exhorted an early determination in such cases. 292 Persons who assume "roles of especial prominence in the affairs of society" are
public figures. 298 While "[s]ome occupy positions of such persuasive power and influence that they are deemed public figures for all
purposes," it is "[m]ore commonly ... public figures [who] have
thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved."294
The four survey defamation appeals suggest the breadth of the
public figure category which included: the Church of Scientology of
California,2911 the Secretary-Treasurer of the International Brotherhood of Teamsters,298 a husband who was a former collegiate and
professional athlete and a wife who had gained considerable media
exposure during an earlier entertainment career and a romance
with Elvis Presley even though she no longer was involved in either
the career or the romance,297 and the owners of a city ambulance
service. li98
.
There must be a defamation, and the constitutional require289. Rosenblatt v. Baer, 383 U.S. 75 (1966); New York Times Co. v. Sullivan, 376 U.S.
254 (1964).
290. Curtis Publ. Co. v. Butts, 388 U.S. 130 (1967).
291. Time, Inc. v. Firestone, 424 U.S. 448 (1976); Gertz v. Robert Welch, Inc., 418 U.S.
323 (1974).
292. Miller v. Transamerican Press, Inc., 621 F.2d 721, 724 (5th Gir.), modified on
rehearing, 628 F.2d 932 (5th Cir. 1980) (per curiam), cert. denied, 101 S. Ct. 1759 (1981).
293. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).
294. [d. See also Curtis Publ. Co. v. Butts, 388 U.S. 130, 164 (1967) (Warren, C.J.,
concurring).
295. Church of Scientology v. Cazares, 638 F.2d 1272, 1286 (5th Cir. 1981).
296. Miller v. Transamerican Press, Inc., 621 F.2d 721, 722 (5th Cir. 1980).
297. Brewer v. Memphis Publ. Co., 626 F.2d 1238, 1240 (5th Cir. 1980).
298. Long v. Arcell, 618 F.2d 1145 (5th Cir. 1980) (stipulation), cert. denied, 101 S. Ct.
869 (1981).
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ment is that the falsehood is factual as opposed to mere opinion. 299
In Church of Scientology v. Cazares,soo the mayor's references to
the Church as a gung-ho group, associated with a mass-murderer,
having. armed guards, and a "rip-off' commercial operation were
not defamatory when measured in context. SOl In Brewer v. Memphis Publishing CO.,802 a newspaper item allegedly stating that the
plaintiff husband had been divorced and cuckolded was defamatory under applicable state law. sos Under the constitutional test,
however, where the husband and wife plaintiffs are both public
figures, the statement must be shown to have been made with "actual malice," defined as knowing falsehood or reckless disregard of
truth or falsity. S04 The focus of actual. malice is not on whether the
publisher acted unreasonably or with ill will, but rather on defen.dant's subjective state of mind. There must be clear and convincing evidence that the defendant knew the statement was false or in
fact entertained real doubt as to its authenticity.soa In the instant
case the evidence was found insufficient to warrant this conclusion~ S06 Because of the highly particularized nature of this issue
and the scope of appellate review, however, the answer to this inquiry is completely fact-bound. 80?
Discovery in these cases also raises constitutional issues. In
Miller v. Transamerican Press, Inc.,sos a libel plaintiff who was a
public figure sought disclosure of a confidential source for the alleged defamatory article. The court considered the issue triangulated by three rulings of the Supreme Court: (1) a public figure can
recover in a defamation case only upon a showing of actual malice;s09 (2) reporters in grand jury proceedings must disclose the
299. Church of Scientology v. Cazares, 638 F.2d 1272, 1286-89 (5th Cir. 1981); Brewer
v. Memphis Publ. Co., 626 F.2d 1238, 1244 (5th Cir. 1980).
300. 638 F.2d 1272 (5th Cir. 1981).
301. [d. at 1286-89.
302. 626 F.2d 1238 (5th Cir. 1980).
303. [d. at 1244. But see id. at 1260-61 (Godbold, J., specially concurring).
304. See, e.g., Herbert v. Lando, 441 U.S. 153 (1979); Gertz v. Robert Welch, Inc., 418
U.S. 323, 342 (1974); St. Amant v. Thompson, 390U.S. 727, 731 (1968).
305. See Herbert v. Lando, 441 U.S. 153 (1979); St. Amant v. Thompson, 390 U.S. 727
(1968).
306. 626 F.2d at 1247-60.
307. Compare Brewer v. Memphis Publ. Co., 626 F.2d 1238 (5th Cir. 1980), with
Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980), and Long v. Arcell, 618
F.2d 1145 (5th Cir. 1980).
308. 621 F.2d 721 (5th Cir. 1980).
309. Curtis Publ. Co. v. Butts, 388 U.S. 130 (1967).
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identities of confidential sources unless the process is abused;slO
and (3) there was "no First Amendment privilege against discovery
of mental processes ... for ... determining whether malice existed."311 The court concluded that a plaintiff in a libel suit could
compel disclosure of the confidential source upon a showing of substantial evidence that (1) the statement was defamatory; (2) reasonable efforts to uncover alternative sources were unsuccessful
and no other reasonable source existed; and (3) knowledge of the
identity of the informant was essential to prepare and present the
law suit. slI Having satisfied these essentials, the plaintiff was entitled to learn the identity of the confidential source.
Free Association
The first amendment right to free association was the touchstone for two significant decisions during the survey period. su
Let's Help Florida v. McCrarySH. involved a state statute which
restricted the size of contributions to a single political committee
in a referendum election. SlO Although protected under the first
amendment as an incident of free association, political contributions are not as protected as campaign expenditures since contribution limits merely require that funds be generated from a large
number of people and do not directly limit political communication. sul Nevertheless, a state must establish "a sufficiently important interest and emplo[y] means closely drawn to avoid unnecessary abridgment of associational freedoms."317 The court drew a
distinction between contributions to candidates and contributions
supporting either side of a referendum issue. A state's substantial
interest in preventing the actual, or even apparent, corruption of
candidates through dependence on large contributions is simply
not present in a referendum election. S18 The state argued that re310. Branzburg v. Hayes, 408 U.S. 665 (1972). Since Branzburg involved the criminal
process, arguably a lesser state interest is balanced against a claim of privilege in a defamation civil suit.
311. 621 F.2d at 725 (citing Herbert v. Lando, 441 U.S. 153 (1979)).
312. 628 F.2d 932 (5th Cir. 1980) (per curiam), modifying on rehearing, 621 F.2d 721
(5th Cir.).
313. Free association also played a significant role in Aladdin's Castle, Inc. v. City of
Mesquite, 630 F.2d 1029 (5th Cir. 1980). See text accompanying notes 258-262 supra.
314. 621 F.2d 195 (5th Cir. 1980).
315. FLA. STAT. ANN. § 106.08(I)(d) (West Supp. 1980) ($3,000 maximum).
316. 621 F.2d at 199 (citing Buckley v. Valeo, 424 U.S. I, 21-22 (1976)).
317. 621 F.2d at 199 (citing Buckley v. Valeo, 424 U.S; I, 25 (1976)).
318. 621 F.2d at 200. See also First Nat'l Bank v. Bellotti, 435 U.S. 765, 790-91 (1978);
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strictions on the size of contributions promoted a policy of disclosure by preventing large donors from funneling large sums through
a committee. While this was an important state interest, it was
poorly served by the contribution restriction which unnecessarily
infringed on association, because such limits merely provided an
incentive to organize multiple committees in the same referendum.
Because of the abridgement of free association, the statute was
held violative of the first and fourteenth amendments. 819
The second free association decision came in Familias Unidas
v. Briscoe. 8l10 At issue was a state statute which empowered a
county judge to exact public disclosure of membership and other
information concerning organizations considered to be engaged in
activities designed to interfere with the peaceful operation of the
public schools. 8l11 The fundamental right to associate for the purpose of "advancing ideas and airing grievances" contains an element of privacy.8l1l1 Compulsory disclosure of organizational membership often frustrates free association by leading to such
disincentives as threats and actual reprisals. 8l18 Recognizing this reality, the Supreme Court generally requires a showing that such
compulsory disclosures be substantially related to a compelling
state interest824 and satisfy the least restrictive means test. 8l111 The .
Supreme Court had held that the preservation of peaceful and undisrupted schools was indeed a compelling state purpose,8l16 and,
further, as limited to organizations "engaged in activities designed
to hinder, harass, or interfere with"827 the schools, the disclosure
was substantially related to the state's purpose. Nonetheless, in
Familias Unidas the statute was held to unnecessarily invade free
association rights. To reach this result, the Fifth Circuit panel had
to distinguish a line of Supreme Court cases which upheld analoC & C Plywood Corp. v. Hanson, 583 F.2d 421, 424-25 (9th Cir. 1978).
319. 621 F.2d at 201.
320. 619 F.2d 391 (5th Cir. 1980).
321. TEX. EDUC. CODE ANN. § 4.28 (Vernon 1972).
322. NAACP v. Alabama ex rei. Patterson, 357 U.S. 449, 460-62 (1958); Ealy v. Littlejohn, 569 F.2d 219 (5th Cir. 1978).
323. See Gibson v. Florida Leg. Invest. Comm., 372 U.S. 539, 544 (1963); Shelton v.
Tucker, 364 U.S. 479 (1960).
324. Gibson v. Florida Leg. Invest. Comm., 372 U.S. 539, 546 (1963); NAACP v. Button, 371 U.S. 415, 438 (1963).
325. Buckley v. Valeo, 424 U.S. 1 (1976); NAACP v. Alabama ex. rei. Flowers, 377 U.S.
288 (1964).
326. Grayned v. City of Rockford, 408 U.S. 104 (1972).
327. 619 F.2d at 399.
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gous disclosure requirements and recognized disclosure and resultant public scrutiny as legitimate means to deter groups from illegal activities. 328 One distinction was that under the challenged
statute disclosure and public recrimination would be felt by the
unknowing and passive member to whom the school disruption interest is irrelevant. The line of cases distinguished, however, sometimes considered this development an unfortunate but unavoidable
cost of serving the important state interest. 329 The court perceived
two critical distinctions which helped it to avoid these precedents.
First, the organizations, in the distinguished cases, the Communist
Party and the Ku Klux Klan, had a history and tradition of unlawful tactics. Under the challenged statute, organizations which
might be required to disclose membership may be unknown quantities so that a passive, unknowing member of an otherwise benign
organization could be the object of recriminations once some other
members independently interfered with the schools. 880 Second, the
disclosure requirement itself was different. The distinguished cases
had involved statutes designed to deter future conduct by disclosure at a time when limiting disclosure to only the dangerous members was impossible. The challenged statute in Familias Unidas,
on the other hand, deterred the unwanted activity not so much by
exposure, but by the threat of exposure should the organization
interfere with the schools. After the organization was so tainted,
some members would have differentiated themselves as knowing
and active supporters. Therefore, to hold disclosure and reprisal
over the head of all members, active and passive, knowing and unknowing, unnecessarily infringed on free association. 831
Religion Clauses
Finally, the first amendment's religion clauses attracted brief
attention from the court. In EEOC v. Mississippi College,m. a
328. See Communist Party of the United States v. Subversive Activities Control Bd.,
367 U.S. 1 (1961); Uphaus v. Wyman, 360 U.S. 72 (1959); New York ex rei. Byrant v. Zimmerman, 278 U.S. 63 (1928).
329. See Communist Party of the United States v. Subversive Activities Control Bd.,
367 U.S. 1 (1961); Uphaus v. Wyman, 360 U.S. 72 (1959); NllW York ex rei. Bryant v. Zimmerman, 278 U.S. 63 (1928).
330. 619 F.2d at 401 (citing Gibson v. Florida Leg. Invest. Comm., 372 U.S. 539, 547
n.2 (1963».
331. The statute was held facially invalid. 619 F.2d at 402. See also text accompanying
notes 54-57 supra.
332. 626 F.2d 477 (5th Cir. 1980).
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white female filed a charge with the EEOC against a college owned, .
controlled and operated by a religious institution, alleging discrimination towards blacks. The first amendment issues presented were
whether application of Title VII to the college violated the two religion clauses.
The prohibition on the congressional establishment of religion
involves three elements: (1) whether there is a secular purpose behind the statute; (2) whether the primary effect of the statute
neither advances nor inhibits religion; and (3) whether the statute
results in "an excessive government entanglement with religion."aaa
The third element was the only one arguably applicable. "Excessive entanglement" is, in turn, divided into three elements: (1) the
character and purpose of the institution benefited; (2) the nature
of the government aid; and (3) the resultant relationship between
the government and the religious institution. a84 While traditional
establishment clause cases consider legislation that benefits religion, the same establishment clause policy against excessive entanglements applies to burdensome measures such as were urged concerning the application of Title VII.8811 The court found that in
Mississippi College the character and purpose of the educational
religious institution were purely sectarian. Additionally, the burden to be imposed on the college of riondiscrimination by sex or
race would not necessarily interfere with efforts at recruiting
faculty with appropriate religious values. And finally, the resulting
relationship between the EEOC and the college would be narrowed
by the charge of the agency. Since no religious tenets required sex
or race discrimination, the second and third elements outweighed
the first. Hence, the application of Title VII did not run afoul of
the establishment restriction. a88
The court next turned to the free exercise clause. The Supreme Court has identified three factors in determining whether a .
government action restrains a sincerely held religious belief: (1) the
severity of the impact upon the exercise of the belief; (2) whether
there is a compelling government interest justifying the encroachment; and (3) the extent to which requiring a religious exemption
333. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
334. [d. at 615.
335. Compare Committee for Public Educ. and ReI. Liberty v. Regan, 444 U.S. 646
(1980) with NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).
336. 626 F.2d at 486-88.
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would frustrate the state from achieving its purpose. 887 The first
factor had already been discounted in analyzing the establishment
clause claim. While enforcement proceedings with all their restraints could have a severe impact on the institution, the impact
on the religious beliefs involved was minimal. Second, the court
recognized a compelling government interest in eliminating discrimination. 888 Third, the court reasoned that religious employers,
while comparatively small in number, played so significant a role
in the economy that a religious exemption was unworkable. Therefore, the free exercise clause was not violated by application of Title VIl889
EQUAL PROTECTION
The fourteenth amendment's equal protection clause "embodies the fundamental principle of American constitutionalism that
the state must govern impartially."uo During the survey period the
court evaluated claims along the entire equal protection spectrum.
The treatment here seeks merely to sample the Fifth Circuit's
work product.
Reasonableness Standard.
No legislation applies to all people and treats them identically;
all statutes classify or discriminate by imposing and excusing burdens or providing benefits for some and not others. The issue then
becomes: When do such classifications or discriminations violate
the equal protection clause? All persons need not be treated identically; equal does not mean the same, and not all discriminations
are invidious. Just as in issues of substantive due process, reasonableness is usually enough. an If a distinction is made between similarly situated individuals, the classification or discrimination must
be fair and must be reasonably related to a legitimate purpose behind the statute. "A state violates the Equal Protection Clause
when it irrationally treats differently those similarly situated or
337. [d. at 488 (citing Wi8consin v. Yoder, 406 U.S. 205 (1972».
338. 626 F.2d at 488 (citing Brown v. Dade Christian Schools, Inc., 556 F.2d 310, 323
(5th Cir. 1977) (en banc) (Goldberg, J., specially concurring), cert. denied, 434 U.S. 1063
(1978».
339. 626 F.2d at 488-89.
340. Anderson v. Winter, 631 F.2d 1238, 1240 (5th Cir. 1980), cert. denied, 101 S. Ct.
941 (1981).
341. See text accompanying notes 165-205 supra.
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when it irrationally treats similarly those people situated differently."S4! A state regulation in social and economic matters does
not violate equal protection "merely because the classifications
made ... are imperfect."s4S As an example, under this traditional
standard the court upheld a state's dual retirement system which
provided more liberal retirement and disability benefits to highway
safety patrol officers than to agents of the bureau of narcotics even
assuming that the latter faced equal or greater on-the-job danger,
which was the professed state rationale. S44 Such an underinclusive
measure was not unconstitutional just because it did not extend
benefits as far as the rationale would allow. A state was not required to "choose between attacking every aspect of it problem or
not attacking the problem at all."8411
. A state law may be fair on its face, however, and be so unequally applied that equal protection is violated. 846 Such was the
case in Ziegler v. Jackson. 847 A character standard required that an
applicant for the state police academy "never [have] been convicted of a felony or a misdemeanor involving either force, violence
or moral turpitude. "S48 Already employed and scheduled to enter
the academy, plaintiff was convicted of two misdemeanors,
presenting a firearm and criminal provocati~n. When he was not
permitted to attend the academy, plaintiff made an equal protection attack, not on the face of the character standard, but on its
application. He established that the character standard had not
prohibited admission to the academy of three other individuals
who had been convicted of assault and forgery. While these crimes
necessarily involved force and moral turpitude, the two crimes he
was convicted of did not. 848 In the absence of any rational justification for the differential treatment,8110 the court held that plaintiff
342. Silva v. Vowell, 621 F.2d 640, 647 (5th Cir. 1980).
343. Dandridge v. Williams, 397 U.S. 471, 485 (1970).
344. Anderson v. Winter, 631 F.2d 1238 (5th Cir. 1980).
345. Id. at 1241 (citing Dandridge v. Williams, 397 U.S. 471, 486-87 (1970».
346. Yick Wo v. Hopkins, 118 U.S. 356 (1886).
347. 638 F.2d 776 (5th Cir. 1981).
348. Id. at 777.
349. Presenting a firearm was defined in ALA. CODE § 13-6-126 (1975) as mere: "present[ing) at another person any gun, pistol or other firearm, whether loaded or unloaded, or
any Roman candle." Crimial provocation was defined in ALA. CODE § 13-1-50 (1975) as: "by
words, signs or gestures, provok[ing) or attempt[ing) to provoke another to commit an assault or an assault and battery upon him, such other person having then and there the
ability to commit such assault or assault and battery." See 638 F.2d at 777 nn.1 & 2.
350. The court did not rely on an invidious discrimination rationale. Nevertheless, racial overtones were suggested. The court did mention that plaintiff was black and the dep-
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had been denied equal protection. 3111
Strict Scrutiny
The second tier of the traditional equal protection analysis requires the court to apply a strict scrutiny to classifications which
either infringe on a fundamental right or discriminate between
persons, with regard to any right, upon a suspect basis. For example, the court applied a strict scrutiny in Helms v. Jones,3112 a case
testing a state statute which made the crime of child abandonment
a misdemeanor if the offense occurred within the state and a felony if the abandoning parent left the state or abandoned the child
after leaving the state. 8118 Since the additional risk imposed on
abandoning parents leaving the state infringed on the fundamental
right to travel, the strict scrutiny test required a compelling state
justification. m The state argued that the greater difficulty in gaining extradition of felons and the cost of state support for abandoned children compelled the classification. Deemed only broadly
conclusory by the court, these arguments were found insufficient to
justify the encroachment on a fundamental right in part because
the state had enacted the Uniform Reciprocal Enforcement of
Support Act which served these same ends. 31111 Since the Act protected these interests, there was no compelling need for the challenged statute, and the classification denied equal protection. 8l1e
uty with whom he had the criminal provocation was white as were two of the three individuals who were allowed to be police officers despite their convictions. 638 F.2d at 778-79 nn.7
& 8. Such a discrimination, if actual, would have made the decision more consistent with the
mainstream of cases. See Yick Wo v. Hopkins, 118 U.S. 356 (1886).
351. 638 F.2d at 779.
352. 621 F.2d 211 (5th Cir. 1980).
353. GA. CODE ANN. § 74-9902 (Supp. 1981).
354. Interstate travel is a recognized fundamental right. Memorial Hosp. v. Maricopa
County, 415 U.S. 250 (1974); Shapiro v. Thompson, 394 U.S. 618, 634 (1969).
355. GA. CODE ANN. § 99-9A (Supp. 1981).
356. 621 F.2d at 212-13. Also of some significance was the admitted failure of the state
to effect enforcement of the challenged statute. [d. at 213 n.7. Alternatively, the court also
recognized that the challenged statute violated the less drastic means rule. [d. at 213. The
Supreme Court reversed shortly after the survey period, reasoning t~at since the misdemeanor of abandonment had occurred before the defendant left the state, his right to travel
was diminished and fleeing the state aggravated the offense. The state was permitted to
treat the entire sequence as a more serious offense. Once the interference with the right to
travel was deemed not to have encroached on a fundamental right and the state applied the
statute to all residents equally, the Supreme Court upheld th!, statute under the equal protection clause on the basis of the state's offered rationales .•Jones v. Helms, 405 U.S. 977
(1981).
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Along with the right to travel, the right to vote is deemed fundamental for equal protection purposes. Because the franchise protects many other political and civil rights, the Supreme Court generally has imposed a strict scrutiny on impairments of this right. 8117
During the survey period the Fifth Circuit has failed to overcome a
self-confessed "initial perplexity"8118 in the so-called voting dilution
cases. 8119 Recent Supreme Court developments have left the court
"adrift on uncharted seas with respect to how to proceed."880 As
the survey period ended, the court was still dead-in-the-water.881
The court considered several restrictions on candidacy during
the survey period. The right to be a candidate is not itself fundamental. Candidacy regulations must still accord with general constitutional protections such as due process and equal protection as
well as with specific and fundamental individual rights such as the
right to vote and the right to associate, which may be indirectly
affected. In light of these multiple constitutional overlays, the
Fifth Circuit has amalgamated a wide variety of alternative tests
into one balancing test. The court performs a pragmatic bal811cing
of the burdens on candidates and voters, the interests of the government, and the practicality that alternative means would satisfy
the government interest more efficiently and with less encroachment on individual interests. 881 Applying this pragmatic approach
during the survey period, the court upheld a state's requirement of
a lluger number of signatures on an independent candidate's petition to be placed on a statewide ballot than was required from an
independent candidate for president. 888 A statewide requirement
that candidates for sheriff have a high school diploma or its recognized equivalent satisfied the balancing test as not unduly burdening the candidate who had adequate opportunity to obtain a certif357. See Kramer v. Union School Dist., 395 U.S. 621 (1969); Harper v. Virginia Bd. of
Elections, 383 U.S. 663 (1966); Reynolds v. Sims, 377 U.S. 533 (1964).
358. Corder v. Kirksey, 639 F.2d ll91, ll95 (5th Cir. 1981).
359. Along with the fourteenth amendment equal protection clause, the fifteenth
amendment also protects against voting abridgement "on account of race, color, or previous
condition of servitude." U.S. CONST. amend. XV.
360. City of Mobile v. Bolden, 446 U.S. 55, 103 (1980) (White, J., dissenting).
361. See generally Lodge v. Buxton, 639 F.2d 1358 (5th Cir. 1981) for an account of
recent developments. See also Corder v. Kirksey, 639 F.2d ll91 (5th Cir. 1981); McMillan v.
Escambia, 638 F.2d 1239 (5th Cir. 1981).
362. Woodward v. Deerfield Beach, 538 F.2d 1081, 1082 n.1 (5th Cir. 1976).
363. Wilson v. Firestone, 623 F.2d 345 (5th Cir. 1980), cert. denied, 449 U.S. 984
(1981). The same statute had been summarily approved in Beller v. Askew, 403 U.S. 925
(1971). See also Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173
(1979).
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. icate nor the ability of any cognizable group to seek office. 864 In a
third case the court turned away an equal protection broadside attack on a state's election code governing election organization,
nominating signatures, filing deadlines and write-in procedures because the court was convinced of the overall, genuine open quality
of the system for candidates and voters alike. 8611 In another case a
candidate for office and several of his supporters alleged that the
ballots were improperly counted and the candidate's opponent erroneously declared the winner. The court held that such an alleged
local maladministration was not a violation of equal protection absent evidence of an intention to dilute the vote of the candidate's
supporters or deprive the affected voters of their right to vote. 866
In addition to classifications affecting individual rights, the
equal protection guarantee also provides a constitutional measure
for classifications which discriminate on the basis of group traits.
During the survey period the Fifth Circuit decided noteworthy appeals involving racial, alienage, and gender categories.
Within the context of racial discrimination, no area of the law
has generated· stronger feelings than desegregation of public
schools. For its role in this effort the Fifth Circuit has been called
the "greatest of all civil rights tribunals."867 During the survey period the court's treatment of school desegregation issues was limited almost exclusively to consideration of remedies.
The most noteworthy school desegregation decision during the
survey period was Lee v. Lee County Board of Education. 868 On
appeal the court affirmed the district court's denial of the government's motion for interdistrict relief. The utarting point for considering the appropriateness of an interdistrict remedy is the
Supreme Court's 1974 decision in Milliken v. Bradley.869 The Su364. Goforth v. Poythress, 638 F.2d 27 (5th Cir. 1981).
365. McCrary v. Poythress, 638 F.2d 1308 (5th Cir. 1981). See also Jenness v. Fortson,
403 U.S. 431 (1971).
366. Gamza v. Aguirre, 619 F.2d 449 (5th Cir. 1980). The court referred the plaintiffs
to available state remedies. Id. at 454.
367. Read, The Bloodless Revolution: The Role of the Fifth Circuit in the Integration
of the Deep South, 32 MERCER L. REV. 1149 (1981). "The Fifth Circuit led the way in the
doctrinal development of all of the major civil rights issues: jury selection, public accommodations, voting rights and school desegregation. But it was in school desegretation that the
problems were the most difficult and the opposition the most persistent." Id. at 1150-52. See
generally F. READ & L. MCGOUGH, LET THEM BE JUDGED: THE JUDICIAL INTEGIlATION OF THE
DEEP SOUTH (1978).
368. 639 F.2d 1243 (5th Cir. 1981).
369. 418 U.S. 717 (1974).
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preme Court in Milliken reviewed a comprehe,nsive plan involving
fifty-four contiguous districts in order to desegregate the Detroit
school district. The wide-reaching remedy was based on the district court's pragmatic conclusion that an intradistrict remedy
could not achieve desegregation and that although there was evidence of de jure segregation only in the Detroit district, the. state
legislature and the state board of education had contributed to the
situation so the suburban districts, as part of the state system,
could be brought in to remedy the problem. The Supreme Court
reversed and held that a record establishing de jure segregation
only in the city could not support a remedy extending beyond the
city limits. A remedy in a school desegregation suit should only
"restore the victims of discriminatory conduct to the position they
would have occupied in the absence of such conduct."87o The plaintiffs had not proven that the suburban districts had violated their
rights nor that the Detroit district's segregative acts had harmed
suburban students. The Supreme Court also rejected as too tenuous the district court's agency and vicarious liability theories of
statewide involvement. Finally, based on an expressed respect for
the tradition of local control of education, the Supreme Court emphasized that the district lines matched jurisdictional limits and
that there had been no showing of segregative line drawing. Milliken established that for an interdistrict remedy to be valid there
must be proof that "there has been a constitutional violation
within one district that produces a significant segregative effect in
another district."871 Specific proof that "racially discriminatory
acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation"
would include a showing that the "racially discriminatory acts of
one or more school districts caused racial segregation in an adjacent district, or [that] ... district lines have been deliberately
drawn on the basis of race."872 Applying this standard to Lee, the
Fifth Circuit majority held that interdistrict relief was inappropriate. 873 After very carefully tracing the history of the three districts
in the <;ounty, the court rejected the government's contention that
they were effectively one school system. In terms of what the court
called "areas ... essential to the autonomy of a school district,"
370. 639 F.2d at 1253 (quoting 418 U.S. at 746).
371. 418 U.S. at 745.
372. Id. at 744-45.
373. Judge Tuttle agreed on the applicable standard but disagreed with the majority's
conclusion that the facts did not satisfy it. 639 F.2d at 1271 (Tuttle, J., dissenting).
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such as political authority, finances, curriculum and general administration, the three districts had separate school boards, tax
rates, curricula, faculty and administrators. The three were "bona
fide, independent school districts," and thus Milliken controlled.S'14
Responding to the government's contention that the Milliken test
was satisfied by an interdistrict transfer pla:n used to maintain racial segregation, the court found no evidence that the transfer program had a substantial direct and current segregative effect in perpetuating a predominately one race school, which resulted from a
demographic pattern which, in turn, was not necessarily the result
of the. transfer rule. au Even the continued acceptance of transfers
from the county districts to the city district was not considered to
have the necessary significant, interdistrict segregative effect since
only a handful of students were involved. 878 Finally, the court held
that subsequent annexations by the city of its own independent
school district were not shown to have been a racially motivated
redrawing of boundaries. 877 .
In a controversial decision the court considered the second .
equal protection category of alienage and the rights of aliens. The
court in Doe v. Plyler878 considered the application of a state statute denying free public education to children based on their status
as undocumented Mexican aliens. 879 Supreme Court precedent has
made it clear that fourteenth a:mendment due process extends to
legal and illegal aliens residing in the United States8SO and that the
equal protection clause protects legal aliens residing in the country.8S1 The issue the court considered, for which there was no de374. [d. at 1256.
375. See Newburg Area Council, Inc. v. Board of Educ., 510 F.2d 1358 (6th Cir. 1974),
cert. denied, 429 U.S. 1074 (1977); Evans v. Buchanan, 393 F. Supp. 428 (D. Del.), aff'd, 423
U.S. 963 (1975).
376. The majority disagreed with the dissent that a violation of the so-called Singleton· student-transfer rule included in a desegregation order would alone support an interdistrict remedy. Compare 639 F.2d at 1261-67 with id. at 1272.
377. [d. at 1269.
378. 628 F.2d 448 (5th Cir. 1980), prob. juris. noted, 101 S. Ct. 2044 (1981).
379. TEX. EDUC. CODE ANN. tit. 2, § 21.031(c) (Vernon Supp. 1980-1981 provided:
The board of trustees of any public free school district of this state shall admit into
the public free schools of the district free of tuition all persons who are either citizens
of the United States or legally admitted aliens and who are over five and not over 21
years of age at the beginning of the scholastic year if such person or his parent,
guardian or person having lawful control resides within the school district.
380. Shaughnessy v. United States ex rei. Mezei, 345 U.S. 206 (1953).
381. Wong Wing v. United States, 163 U.S. 228 (1896); Yick Wo v. Hopkins, 118 U.S.
356 (1886).
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finitive Supreme Court answer, was whether the equal protection
clause extended to illegal aliens in this country. Preserving. the
symmetry of the precedents, the court answered the question affirmatively.382 To reach this result, the court relied on Supreme
Court dictum,383 and the logic of the fourteenth amendment. Since
the due process clause applied to illegal aliens, the court saw no
reason to conclude that the equal protection clause did not. The
state could not muster a plausible argument in favor of a contrary
result, and since a contrary result would be untenable, the court
concluded that the fourteenth amendment meant what· it said.
Having decided that illegal aliens were protected by the'equal protection clause, the court next considered what standard of review
was applicable. While strict scrutiny would be required if the state
were discriminating between aliens and others,38" the statute in'
question made another discrimination. ,School-aged citizens and'
lawful aliens were one group guaranteed public education, while
everyone else, including illegal aliens, was in a second, group not
guaranteed public education. 3s11 The court concluded that "although a statute that discriminates against some,but not all, legal
aliens on the basis of some characteristics of alienage is subject to
strict scrutiny, a statute that discriminates in favor of ~ll 'legal .
aliens is not per se subject to [strict] judicial review."38s In any
event, because the statue was deemed irrational, it failed the minimal equal protection standard. 387 The state's contention that it was
382. 628 F.2d at 454. Ct, Bolanos v. Kiley, 509 F,2d 1023 (2d Cir. 1975).
383. "The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: 'Nor shall any State deprive any person of life, liberty or
property without due process of law; nor deny to any person within its jurisdiction
the equal protection of the law.' Those provisions are universal in their application to
all persons within the territorial jurisdiction, without regard to any differences of
race, of color, or nationality; and the equal protection of the laws is a pledge of the
protection of equal laws." Applying this reasoning to the Fifth and Sixth Amendments, it must be concluded that all persons within the territory of the United States
are entitled to the protection guaranteed by those amendments.
628 F.2d at 455 (citations omitted) (quoting Wong Wing v. United States, 163 U.S. 228,238
.
(1896), wherein was quoted Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886».
384. 628 F.2d at 457. The court emphasized the alienage classification aspect of equal
protection after "declin[ing) to find that complete denial of free education to some children
is not a denial of a fundamental right." [d. The Supreme Court recently has emphasized the
importance of clearly defining the legislative categories. See Schweiker v. Wilson, 450 U.S.
221 (1981).
385. Of course, the statutory exclusion of out of state residents would not violate the
equal protection principle because the protection of the law went only so far as the jurisdiction of the state. 628 F.2d at 457 n.24.
386. [d. at 458 n.25.
387. [d. at 458-61.
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protecting against a devaluation of its citizens' and legal aliens'
public education was not deemed sufficiently rational. "[A] state's
desire to save money cannot be the basis of the total exclusion
from public schools of a group of persons who are entitled to the
equal protection of the laws of [the state] and who share similar
characteristics with included children."388 As a parting observation
the court recognized the acute problem facing border states caused
by the failure to enforce national immigration laws but concluded
that the Constitution required affirmance of the district court's injunction against following the statute. The Supreme Court has
noted probable jurisdiction in this case, so the issues may soon be
reconsidered. 389
During. the survey period the court considered three genderbased equal protection cases. In re Crist 390 involved the constitu'"
tionaJity of section 17(a)(7) of the Bankruptcy Act of 1898.391 The
statute denied bankruptcy discharge "for alimony due to or become due, or for maintenance or support of wife or child, or for
seduction of an unmarried female or for breach of promise of marriage accompanied by seduction, or for criminal conversation."3el
On appeal it was argued that the gender-based discrimination
passed constitutional muster as an attempt to alleviate "the disparity in economic condition between men and women caused by
the long history of discrimination against women. "393 The court rejected this as an insufficient blanket justification of a government
compensation interest, which automatically presumed that a
woman had suffered some compensable discrimination. 3e• The
court also declined to reinterpret the statute in a gender neutral
way by defining the term "wife" as spouse. 3911 Instead, the statute
was analyzed under equal protection as written. 39G Rather than de388. Id. at 459. The court rejected a distinction based on legal presence. Id. at 459-60.
389. 101 S. Ct. 2044 (1980).·
390. 632 F.2d 1226 (5th Cir. 1980).
391. 11 U.S.C. § 35(a)(7) (1976). This section was modified and replaced subsequent to
the suit by the Bankruptcy Reform Act of 1978, 11 U.S.C. § 523(a)(5) (Supp. III 1979).
392. 11 U.S.C. § 35(a)(7) (1976).
393. Califano v. Webster, 430 U.S. 313, 317 (1977). See Schlesinger v. Ballard, 419 U.S.
498 (1975); Kahn v. Shevin, 416 U.S. 351 (1974).
394. 632 F.2d at 1232. See Note, Alimony Awards Under Middle-Tier Equal Protection Scrutiny, 59 NEB. L. REV. 172 (1980).
395. 632 F.2d at 1232-33. This path was made "legally impassable" by the Supreme
Court interpretation in Westmore v. Markhoe, 196 U.S. 68 (1904).
396. This has been the Supreme Court approach as well. See Califano v. Westcott, 443
U.S. 76 (1979); Califano v. Goldfarb, 430 U.S. 199 (1977); Weinberger v. Wiesenfeld, 420
U.S. 636 (1975).
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claring the statute a nullity and thereby deny its benefits to males
and females, the court followed the Supreme Court's lead and extended the benefit to everyone. 397 While the statute as written provided females the benefit of nondischargeability of such debts
owed by husbands, it did not do the same for those owed by wives.
However, the equal protection clause required that the benefit be
extended so that either a husband or a wife receiving· alimony or
maintenance could assert the nondischargeability of the obligation.
I
In another gender-based appeal, Hester v. Harris,398 the court
considered a presumption in the Social Security Act, namely that
in a comnlUnity property state the income from a trade or business
other than a partnership was the husband's income, unless the wife
exercised substantially all of the management and control of the
business. 399 The husband thus was favored with the benefit of a
statutory presumption that the business income was his, while the
wife was burdened by having to rebut the presumption by showing
she had exercised substantially all the control over the enterprise.
The court deemed this an obvious violation of equal protection. 40o
Just as the standard for equal protection analysis of genderbased discriminations has changed over the last decade, during the
survey period the court learned that a particular plaintiff's gender
may change as well, leading to a fact situation suggestive of law
school hypotheticals. In Kirkpatrick v. Seligman & Latz, Inc.,·ol a
prospective transsexual had been terminated from his job when, on
his physician's orders, he refused to dress in accordance with his
biological gender. She402 filed a suit after her sex reassignment process had been completed. Of course, the gender-based discrimination test applies whether the classification discriminates against
males or females. 403 Kirkpatrick was claiming a discrimination
against her as a male and female; she argued that she had been
discriminated against as a transsexual woman. The court concluded that since the plaintiff was still a male when he started
397. 632 F.2d at 1234. See Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142 (1980);
Califano v. Westcott, 443 U.S. 76 (1979); Califano v. Goldfarb, 430 U.S. 199 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).
398. 631 F.2d 53 (5th Cir. 1980).
399. 42 U.S.C. § 411(a)(5)(A) (1976).
400.631 F.2d at 55-56.
401. 636 F.2d 1047 (5th Cir. 1981). Suit was under 42 U.S.C. § 1985 (1976).
402. On the question of gender-reference, see 636 F.2d at 1048 n.l.
403. Caban v. Mohammed, 441 U.S. 380 (1979); Orr v. Orr, 440 U.S. 268 (1979); Craig
v. Boren, 429 U.S. 190 (1976).
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wearing female clothing, her employer's refusal to allow the cross
dressing at that time did not discriminate against her as a
female. 404
CONCLUSION
It is important to note in closing that the constitutional decisions of the courts of appeals will continue to increase in number
and importance as the burgeoning federal caseload grows. The·
scope and length of this article portrays the nearly impossible task
confronting federal appellate courts. Faced with the reality that
the court of appeals sits in most cases as both the appeal of right
arid the final review, these judges are becoming, if not less fallible,
at least more final in the constitutional domain. 4011 As this trend
continues distinct principles of federal constitutional law will be
developed by these regional supreme courts. Their holdings will
become more and more important.
The significance of this development is highlighted in the present· Symposium by a recent historic event in the history of our
federal courts: the Fifth Circuit Court of Appeals Reorganization
Act of 1980.406 The division of the Fifth Circuit into the new Fifth
Circuit, composed of the District of the Canal Zone, Louisiana;
Mississippi and Texas, and the new Eleventh Circuit, composed of
Alabama, Florida, and Georgia, raises many important questions
for the new courts. Just how the precedents discussed here will
fare in the two new courts is unclear. 407 As the jurisprudential au~onomy of the courts of appeals increases, so do Congressional and
judicial 'responsibilities involved in restructuring our federal
courts ..
404. 636 F.2d at 1049-50. The court did not reach the question whether transsexuals
were a suspect class, for fourteenth amendment' purposes, because the complaint nowhere
alleged a discrimination against transsexuals or plaintiff qua transsexual. Instead, the allegations were that her employer would not allow her to dress like a woman when she was still
a man. The plaintiff apparently made no claim of violation of constitutional right of privacy
notion of personal autonomy.
405. The paraphrase is borrowed from Mr. Justice Jackson's observation on the Supreme Court: "We are not final because we are infallible, but we are infallible only because
we are final." Brown v. Allen, 344 U.S. 443, 540 (1953).
406. Pub. L. No. 96-452, 94 Stat. 1994 (1980).
407. See generally Baker, note 277 supra.
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